Major law amendments in 2014 concerning customs & foreign exchange

CUSTOMS

Expansion of Scope of Customs Duty Refund Application

In a related party transaction, the Korea Customs Service (KCS) and National Tax Service (NTS) determine the transaction value in their own independent ways in pursuit of increasing their respective tax revenues, which may lead to a different valuation for the same goods and subject the taxpayer to double taxation. In order to address this problem, amendments were made in 2012 to the Customs Act and the Law on Coordination of International Tax Affairs (so-called the harmonization of customs and transfer pricing), whereby the taxpayer is allowed to seek a refund from the KCS based on a lower customs value if the NTS makes a tax assessment based on a transfer pricing adjustment to lower the value of the imported goods (but, not by way of an APA (advance pricing arrangement) and to seek a refund from the NTS based on a higher imported goods value if the KCS assesses an additional customs duty based on the higher customs value for such goods.

The 2014 amendment goes a step further and  would allow the refund application in the case of a discrepancy between the customs value and the transfer pricing of imported goods caused by a retroactive adjustment made in accordance with the NTS’ approval of an APA. As such, in the cases where the Director of the NTS approves an advance pricing arrangement (APA) pursuant to the Law on Coordination of International Tax Affairs, it would be possible to seek a refund of customs duty with respect to the relevant imported goods. (The Customs Act, Article 38.4).

It is expected these amendments will revitalize the harmonization of customs valuation and transfer pricing, thereby helping taxpayers that were at a disadvantage due to the disparity in system created by the two competing authorities.

Expanded Application of Penalties for Falsified Report

At the time of an export/import reporting, if one specifies an inaccurate information in the required fields on the report, such person could be sanctioned for a falsified report or price manipulation. However, the same rule did not apply to filing of amended returns. The 2014 amendment to the Customs Act now expands the scope and stipulates that penalties for falsified report or price manipulation apply in the case of filing amended returns as well as export/import reports. (The Customs Act, Articles 270.2 and 276).

Therefore, care must be taken to ensure so as to avoid the risk of being subject to a sanction for falsified reporting or price manipulation when filing amended returns as well.

FOREIGN EXCHANGE

Amendments Simplify Reporting Process for Certain Transactions and Expand the Scope of Transactions Subject to Overseas Direct Investment Reporting

According to the foreign exchange regulations, a set-off transaction between a resident and a non-resident or a third-party payment should be reported to the foreign exchange authorities in advance.

Effective 2014, small-amount set-off transactions or third-party payments of a USD 1,000 and lower value are exempt from the reporting requirement. In addition, in respect of set-off transactions, the authority to which the report should be made has changed to a foreign exchange bank in general (previously, reportable to the Bank of Korea), with the exception of multi-party set-off transactions, which should be reported to the Bank of Korea. As such, the reporting procedure has become considerably simplified. (Foreign Exchange Transactions Regulation, Article 5-4 and 5-10).

In respect of an overseas direct investment by a Korean resident, the amendment has added additional events such as change of the investment amount or liquidation with respect to the local foreign corporation’s subsidiaries or second-tier subsidiaries as those triggering the report requirement, in addition to establishment of subsidiaries or second-tier subsidiaries. Accordingly, one must take care to make a timely filing of the requisite overseas direct investment report whenever any change occurs with respect to the overseas direct investment. (Foreign Exchange Transactions Regulation, Article 9-5).