Customs lawyer in Almaty — disputes with customs without stopping supplies

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Customs lawyer: disputes with customs in Kazakhstan

The cargo is sitting in a temporary storage warehouse, the declaration has been released, but a decision has arrived to adjust the customs value or classification. Every day of delay means costs to the carrier, penalties under the contract and the risk of disrupting the delivery. At this stage a mistake costs the most: a decision signed without analysis or hasty agreement to the new value closes off the possibility of a dispute in future.

Customs work requires not only knowledge of procedures but also the ability to work with supply documents, invoices, and the transport and commercial terms of the transaction. The wrong tactic — agreeing and paying extra to release the goods faster — often means that during a post-release audit the same arguments no longer work. Below is what a customs lawyer does at each stage of a dispute.

Customs lawyer or defence lawyer for customs cases: who is needed in a dispute

While a dispute with customs runs along the administrative line — adjustment of value, classification, post-release audit — a customs lawyer and a defence lawyer for customs cases do the same work: prepare the position, gather documents, write the complaint, go to court. The distinction appears when the case moves into criminal territory: in Kazakhstan an investigation does not begin with 'initiating a case' but with registering information in the Unified Register of Pre-Trial Investigations. Here the defence is conducted by a defence lawyer: their authority is confirmed by an order, and the licence and membership of the bar association give access to the case file and investigative actions.

So the choice depends on the stage. At the stage of an audit and a pre-trial complaint, experience in customs law matters more than status, but in court the company's interests are represented by a defence lawyer, a legal consultant of the chamber or an in-house employee — the court will not admit an outside lawyer without that status to the case. If it is a matter of smuggling or evasion of payments, customs defence lawyers get involved from day one — before the first interrogation and before you give any explanations.

• Administrative dispute — adjustment, classification, audit: both a lawyer and a defence lawyer can act.
• Criminal case — the defence is conducted by a defence lawyer, authority confirmed by an order.
• The earlier a customs lawyer joins the case, the fewer mistakes in the testimony.

Customs law lawyer and defence lawyer for customs cases: which rules apply

Customs disputes in Kazakhstan are dealt with at two levels. Since 1 January 2018 the EAEU Customs Code has been in force — it sets the general rules for the whole union: release of goods, customs value, classification, customs procedures. Domestically, the Code of the Republic of Kazakhstan 'On Customs Regulation in the Republic of Kazakhstan' is added to it — it specifies procedures, powers and the appeal procedure. A customs law lawyer works at the intersection of these two documents, so it is important to determine precisely which level of regulation applies to the disputed issue: in administrative proceedings the court reviews the lawfulness of the decision on the merits and is not bound by the parties' arguments, but the wrong level of regulation destroys the position itself.

Practical context: customs functions are performed by the state revenue bodies, headed by the State Revenue Committee of the Ministry of Finance of the Republic of Kazakhstan. It is its territorial divisions that adopt decisions on adjustment of value, change the HS code, conduct post-release audits and draw up protocols. When administrative or criminal liability becomes the subject — confiscation, additional assessment, a smuggling case — the time limits, the burden of proof and the scope of possible arguments change, and what is missed at the first stage can almost never be corrected later.

• EAEU: general rules on release, value, classification
• Code of the Republic of Kazakhstan: national procedures and appeals
• State revenue bodies adopt decisions and protocols
• Administrative liability — proceedings and fines
• Criminal liability — smuggling and evasion

Broker, consultant and customs dispute lawyer: who does what

Roles in a customs dispute: the broker declares, selects the HS code, responds to customs requests during release. Before a complaint, the consultant checks the invoice, contract and documents and assesses the prospects of the dispute.

A defence lawyer gets involved when declaration has grown into a dispute: adjustment of value or classification, post-release audit, protocol, smuggling case. Prepares the complaint, conducts the case in court, builds the defence. In Almaty it is important to gather the documents of the importer, exporter or carrier into a single position in good time.

Schematically it looks like this:

Declaration and release: broker or representative.

Selecting the code and preparing the position on value: a consultant with customs experience.

Responding to post-clearance audit enquiries: a consultant together with an advocate.

Appealing the decision and defending in court: an advocate specialising in customs cases.

A broker and a consultant do not replace an advocate in court, and an advocate does not file the declaration instead of the broker: the tasks do not overlap.

Lawyer specialising in customs disputes and advocate specialising in customs cases: customs value adjustment

If customs has issued a decision on adjusting the customs value, the dispute turns on the method of determining value. The primary method is the transaction value of the imported goods: the price actually paid or payable, plus the additional charges listed in the EAEU Customs Code. Only if that method cannot be applied is the authority obliged to move sequentially to other methods, and each subsequent one is applied only where the previous one cannot be used; the exception is the deductive and computed value methods, which may be swapped at the declarant's request.

A lawyer specialising in customs disputes checks which documents confirm the declared price and where the authority breached the procedure. As a rule, the price is confirmed by the contract with annexes and specifications, the invoice and packing list, payment documents and a bank statement, transport and insurance documents, price lists and the export declaration. The most costly mistakes are where the adjustment decision is based on an incomplete audit, arbitrary selection of sources, or a move to the fallback method without justifying why the previous methods cannot be applied.

Classification under the HS code: how an advocate specialising in customs cases defends the goods code

A dispute over the HS code is a dispute over the rate and over a non-tariff regulation measure. If customs has changed the code, the rate may rise and the goods may fall under prohibitions or licensing; the declarant is issued an additional assessment and an adjustment decision. An advocate specialising in customs cases works through the chain: the description of the goods in the invoice, the packaging, composition, purpose, technical documentation, photographs and samples, and then applies the General Interpretative Rules of the HS: the code is determined by the wording of the headings together with the notes to the sections and chapters, while the explanatory notes are merely supporting material that does not itself change the code.

The key defence tool is a preliminary classification decision obtained before filing the declaration: it removes the dispute for the future. If a decision has already been issued against the declarant, expert examination comes into play: customs, commodity, technological, sometimes chemical. A customs lawyer formulates the questions for the expert, checks their competence and the samples, files a challenge and disputes conclusions that are not based on examination. What is important to preserve at this stage:

• technical documentation and manufacturer's instructions with translation
• photos and videos of the goods, packaging, marking
• samples and sampling reports
• correspondence with the supplier and the broker about the code
• previously issued preliminary decisions on similar goods

Post-release verification: how a customs lawyer responds to requests

Customs control after release is possible within three years from the day the goods ceased to be under customs control: the authority may request documents, order a desk audit or visit the foreign trade participant. The released goods are checked, but the outcome is additional assessment of payments, adjustment, a protocol.

Certificates of origin, invoices, price lists, transport and freight forwarding documents, payment orders, bank statements, correspondence with the counterparty and previous declarations are needed. Without primary documents, objections do not work.

The lawyer examines the basis of the request, checks it against the transaction documents and prepares a reasoned response within the deadline. Objections with calculations and references are filed against the audit report. What is worth preparing:

• Find the full package for the disputed shipment before the response deadline expires: invoice, packing list, CMR, contract, specification
• Check that the request concerns this particular declaration and does not duplicate documents already submitted
• Send the response or objections in writing, with an inventory of attachments and acknowledgement of receipt
• Keep copies: in the administrative court they will form the basis of the position

Complaint and administrative court: how a customs lawyer appeals a decision

After the customs decision, the lawyer files a complaint: under the APC it is submitted to the authority that adopted the decision, and it is considered by the superior state revenue authority; if the complaint is not upheld, a claim is filed in the administrative court. The deadline for the complaint runs from the day the adopted decision became known, and the deadline for the claim runs from the day the decision on the complaint was served. Missing it complicates the challenge.

In administrative proceedings, it is the customs authority, not the importer, that must prove the lawfulness of the decision. The complaint and the claim are accompanied by the declaration, invoice, contract, transport and commercial documents, correspondence. It is convenient to keep the list of documents in front of you.

• The customs decision and the acknowledgement of service — we record the date.
• Complaint through the authority that adopted the decision to the superior state revenue authority — mandatory before court.
• Claim to the specialised interdistrict administrative court.
• Package of documents on the shipment and correspondence with the broker.
• Enforcement of the decision is suspended by the filing of the complaint itself — no separate motion is needed.

A complaint is filed first, then a claim if the complaint is not satisfied; each stage has its own deadline.

Violation of customs rules: defence by a lawyer in customs cases

Violation of customs rules most often involves non-declaration or inaccurate declaration: the wrong HS code in the declaration, undervalued goods, a good or part of it not declared. A separate category is breach of procedural deadlines: goods not placed under a procedure on time, a transit operation not completed, reports not submitted. For each offence, a lawyer in customs cases examines whether there is fault on the part of the declarant or carrier, and how this affects liability.

The most costly mistake is to accept the decision and pay without assessing the prospects of the dispute: the goods then leave at an inflated value or under the wrong code, and overpaid duties are harder to recover.

• Non-declaration: goods not declared or declared only in part
• Inaccurate declaration: HS code, value, country of origin
• Breach of deadlines: procedure, transit, reporting
• Fault of the carrier and the declarant: who is responsible for the information in the declaration
• The fate of the goods: release, detention, return

Smuggling and evasion of payments: a customs lawyer from day one

A criminal case on the customs line begins where intent is visible behind an administrative offence: false declaration with understatement of payments on a large scale, forged invoices and certificates, splitting of a shipment, import of goods outside checkpoints. Once the information is entered in the Unified Register of Pre-trial Investigations, adjustment of value ceases to be a dispute about figures: the investigator reads the discrepancy as a means of evading payments. At that point a customs lawyer is needed before the first interrogation.

Defence counsel enters the case from the moment of the actual detention of the carrier or the director of the LLP, or from the moment the person is recognised as a suspect. Until then, one must not sign explanations, give testimony or "clarify" a submitted declaration: such clarifications turn into ready-made evidence. What is worth gathering immediately:

• The declaration, invoice, contract and the manufacturer's price lists with translation.
• Correspondence with the supplier and the broker about the price and the commodity code.
• Payment documents confirming the actual payment.
• Documents on the technical error: adjustments, refunds, reconciliation statements.

Detained goods: release under security and lifting of seizure

If customs has suspended release, it is important to quickly establish the ground: an additional value check, the register of intellectual property objects, or a seizure. The procedure and the time limits depend on this. In an additional value check, release is possible under security for payment of duties — the cargo can be collected without waiting for the check to end. A customs lawyer verifies the lawfulness of the security requirement and prepares the documents for release.

Where release is suspended because of the register of intellectual property objects, customs notifies the right holder. The lawfulness of the import must be confirmed within a short period, or the actions of customs must be challenged. In the case of a seizure, a customs lawyer establishes the ground and seeks the lifting of the measures. If the seizure is within an administrative or criminal case, the defence is built taking into account the procedural status.

What most often needs to be prepared in such a situation:

• documents confirming the declared customs value
• calculation and payment of security for the duties
• evidence of lawful import in a dispute with the right holder
• an application to lift the seizure with supporting evidence attached
• a power of attorney and the representative's documents for dealing with customs

Refund of overpaid duties with a customs lawyer

Overpayment arises from an unapplied preference, an incorrect HS code or a cancelled customs decision. The most costly mistakes are to miss the deadline for the application and to fail to keep the documents confirming the right to a refund. A customs lawyer helps to gather the evidence and recover the money without new disputes.

The application is filed with the customs authority within the period established by law. Missing the deadline is an independent ground for refusal, so it is counted from the date of payment or the entry into force of the decision. What will be needed:

• payment documents for customs duties, penalties and interest;
• the declaration and adjustments (DT, KDT, classification decision);
• documents on preferences: certificate of origin, invoice, contract;
• a customs or court decision cancelling the assessment;
• an application for a refund with a calculation of the overpayment.

Import from EAEU countries: a customs lawyer or a tax lawyer

When goods of the Union are imported from EAEU countries, there is no customs declaration: a goods declaration is not submitted and no release is carried out. But customs issues do not disappear — the dispute shifts into the tax plane. Import VAT is paid to the budget, and an application for the import of goods and payment of indirect taxes and an indirect tax declaration are submitted to the tax authority — it is around these forms, the rate and the deadlines that disputes arise.

A separate story is goods of third countries coming to Kazakhstan through another state of the union. The border within the EAEU is open, but origin, status and the completeness of payment of indirect taxes are checked, and here a customs lawyer is needed no less than in ordinary import. If you are not sure where to take your claim — to customs or to the tax authorities — a lawyer in customs and tax law will draw the line on the documents: under which procedure the goods were imported, who was required to declare what, and which authority issued the claim. A mistake in choosing the addressee of the complaint is costly: deadlines run out, and the decision enters into force.

• import from the EAEU — an application to the tax authorities, not a declaration
• goods of third countries through the union — verification of origin and status
• a VAT dispute on import — a separate line of defence
• the wrong addressee of the complaint — a missed deadline

Extradition lawyer: when a customs case becomes international

When a dispute with customs stops being a dispute about a code or value and turns into a question of freedom, an extradition lawyer steps in. This happens if a foreign state has opened a criminal prosecution and sent Kazakhstan a request for extradition. After detention, a court may authorise extradition arrest, and from then on it is not the fate of the goods that is decided, but the question of extradition itself.

The decision on extradition is taken by the Prosecutor General's Office, and it can be appealed in court. Under the Constitution, a citizen of Kazakhstan is not extradited to a foreign state unless otherwise provided by an international treaty. Grounds for refusal include the political nature of the prosecution, the risk of torture and the existence of citizenship status; an extradition lawyer also checks for procedural violations during the arrest.

• The political or discriminatory nature of the prosecution.
• The risk of torture and inhuman treatment.
• The detained person holds Kazakhstani citizenship.
• Procedural violations during extradition arrest.

Online consultation on customs matters: what to send to a customs lawyer

An online consultation on customs matters starts with documents, not with a retelling. Send to WhatsApp the customs decision or notification, the goods declaration, the invoice, the contract, transport and commercial documents, and for vehicles — the sale and purchase agreement, the seller's documents and confirmation of payment. Do not delete your correspondence with the broker: it shows who submitted the information and on what basis.

A consultation with a customs lawyer differs from an answer by an online customs consultant in that it is built on an analysis of your declaration, decision and deadlines. A consultation with a customs lawyer is not limited to a general rule: the lawyer checks the HS code, the value and the documents, finds the error and says what to challenge and how to prove it. If the documents are clean, you will hear that too — and will not waste time on a dispute.

• a decision on adjustment or classification;
• the goods declaration with all sheets;
• the invoice, contract, specification;
• transport and payment documents.

Cost of services of a lawyer in customs cases

The cost of services of a lawyer in customs cases is not fixed: it is made up of the volume of work, which depends on the stage of the dispute and the number of episodes. While customs has only sent a request, the effort is one thing, but if proceedings for an administrative offence or a pre-trial investigation have already begun and the goods are detained — quite another.

The price is also affected by what exactly needs to be done: prepare objections to an adjustment of value or classification under the HS code, challenge a customs decision, recover overpaid payments, lift a seizure from the cargo or defend in a case of violation of customs rules. Expert examinations, translations and travel are counted separately — these are external expenses, not the fee. To understand the order of the figures, the lawyer, after an online consultation on customs matters, gives an estimate and explains what it is made up of.

• Volume and complexity of the dispute: adjustment, classification, post-release audit.
• Stage: customs enquiry, appeal, administrative court, criminal case.
• Number of consignments and episodes in the case.
• Urgency: detained goods, carrier downtime, securing release.
• External costs: expert examination, translation of documents, travel by the lawyer.

In a customs dispute, the one who wins is the one who keeps the supply documents and does not sign the customs decisions before they have been legally analysed. Quick release by agreeing to an adjustment is almost always more expensive than a timely dispute.