On March 01, 2021, the Board of the Eurasian Economic Commission approved Decision No. 23 "On Approval of the Regulation on Determining the Customs Value of Goods Imported into the Customs Territory of the Eurasian Economic Union under a Lease or Financial Lease (Leasing) Agreement" (hereinafter referred to as the Decision).
The decision was developed to ensure the uniform application of the provisions of the chapter of the Customs Code of the Eurasian Economic Union (hereinafter referred to as the Customs Code of the EAEU, the EAEU).) on the customs value of goods when applying methods for determining the customs value of goods imported into the customs territory of the EAEU under a lease or financial lease (leasing) agreement.
Due to the fact that when importing goods that are the subject of lease or leasing, they are not sold for export to the customs territory of the EAEU, as is necessary for the purposes of applying Article 39 of the Customs Code of the EAEU, the method of transaction value (method 1) is not applied, even if the lease agreement or leasing agreement provides for the possibility of subsequent purchase of goods.
These conclusions are also contained in advisory opinion 1.1 of the Technical Committee on Customs Valuation of the World Customs Organization, which, inter alia, determines that a lease and leasing transaction does not contain a sale, even if the contract provides for the intention to purchase further goods, and the import of goods under lease or leasing contracts refers to cases in which the imported goods are not the subject of sale.
If there is documented information about the sale of identical or similar goods for export to the customs territory of the Union, the customs value of the goods that are the subject of lease or leasing is determined by the value of the transaction with identical goods (method 2) or by the value of the transaction with similar goods (method 3) in accordance with Articles 41 or 42 of the Customs Code of the EAEU, respectively.
Due to the fact that the goods that are the subject of lease or leasing are transferred to the temporary possession and / or use of the lessee or lessee and there is no information about their sales in the customs territory of the Union, the subtraction method (method 4) can be used only if there is documented information about sales in the customs territory of the Union of previously imported identical or similar goods.
The addition method (method 5) is based on information about the production of the evaluated goods, confirmed by commercial documents submitted by the manufacturer of the goods. Given that documents and information about the costs of production of goods are usually confidential and are not disclosed by the manufacturer, the use of method 5 will be possible only in cases where the manufacturer agrees to provide documents and information about the costs of production to the lessee or lessee.
At the same time, it should be taken into account that the leased item may be provided to the lessee directly by the manufacturer of such goods, while the lessor, as a rule, is not the manufacturer of the leased item.
This decision discloses in more detail the rules concerning the use of the reserve method (method 6) in accordance with Article 45 of the Customs Code of the EAEU, taking into account the Rules for the use of the reserve method (Method 6) when determining the customs value of goods, approved by the decision of the EEC Board of 06.08.2019 No. 138. In this case, as part of the application of the reserve method (method 6), information on the amounts of rent or lease payments paid can also be used.
The customs value of goods should not include expenses that are not part of the customs value, for example, provided for in paragraph 2 of Article 40 of the Customs Code of the EAEU, and interest payments, subject to the conditions provided for in the Rules for Accounting for Interest Payments when determining the Customs value of Goods, approved by the Decision of the Board of the Eurasian Economic Commission No. 118 of September 22, 2015.
If the lease or lease agreement does not provide for the transfer of ownership, the determination of the customs value of the goods may also be based on the amount of rent or lease payments. For example, the basis may be a set of estimated lease payments or lease payments for the period of the economic life of the goods (useful life). In this case, the differences concerning the economic life (useful life) of new and used goods should be taken into account, when determining which for new goods the "entire economic life" is used, and for used goods the "remaining economic life" is used.
When determining the customs value of goods that are the subject of lease or leasing, it is necessary to make amendments in the form of additions or subtractions, depending on the terms of the contract and taking into account the provisions of Chapter 5 of the Customs Code of the EAEU.