INFORMATION ON IMPLEMENTATION AND ADMINISTRATION OF
THE AGREEMENT ON CUSTOMS VALUATION

Checklist of Issues

Senegal

The following communication, dated 7 October 2024, is being circulated at the request of the delegation of Senegal.

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1.     Questions concerning Article 1:

(a)   Sales between related persons:

(i)     Are sales between related persons subject to special provisions?

          Article 3.2(a) of Regulation No. 05/99/CM/UEMOA of 6 August 1999 (_G/VAL/N/1/SEN/1) on customs valuation).

In determining whether the transaction value is acceptable for the purposes of paragraph 1, the fact that the buyer and the seller are related within the meaning of Article 1 shall not in itself be grounds for regarding the transaction value as unacceptable. In such case the circumstances surrounding the sale shall be examined and the transaction value shall be accepted provided that the relationship did not influence the price. If, in the light of information provided by the importer or otherwise, the customs administration has grounds for considering that the relationship influenced the price, it shall communicate its grounds to the importer and the importer shall be given a reasonable opportunity to respond. If the importer so requests, the communication of the grounds shall be in writing.

(ii)    Is the fact of intercompany prices prima facie considered as grounds for regarding the respective prices as being influenced?

          Awards and transfers are widespread among linked companies. The customs administration examines relevant aspects of the transaction, including the way in which the buyer and seller organize their commercial relations and the way in which the price was arrived at, in order to determine whether the relationship influenced the price (Article 15.4 of the Agreement on Implementation of Article VII).

          Article 3.2(a) of Regulation No. 05/99

(iii)   What is the provision for giving the communication of the aforementioned grounds in writing if the importer so requests? (Article 1.2(a))

          In situations where the customs administration has grounds to consider that the relationship between the buyer and seller has influenced the price and that the information provided by the importer is not satisfactory, it is required to inform the importer of these grounds in writing, in accordance with Article 3.2(a) in fine of Regulation No. 05/99/CM/UEMOA.

(iv)   How has Article 1.2(b) been implemented?

       Under Article 132 of the Customs Code.

(b)   Price of lost or damaged goods:

Are there any special provisions or practical arrangements concerning the valuation of lost or damaged goods?

The customs value of such goods is stipulated by Article 13 (2) of the Customs Code, which provides that: “The customs administration can authorize the separation of any goods that, as part of a single shipment, have deteriorated as a result of events occurring prior to registration of formal entry. The damaged goods have either to be destroyed immediately, re‑exported, abandoned to the Revenue or assessed in accordance with their current condition.”

“Assessed in accordance with their current condition” refers to a customs valuation conducted in line with the texts on transaction value.

2.      How has the provision of Article 4 to allow the importer an option to reverse the order of application of Articles 5 and 6 been implemented?

The order of application of the deductive value method and computed value method can be reversed at the importer's request, subject to the approval of the customs administration (Article 7 in fine of Regulation No. 05/99).

3.      How has Article 5.2 been implemented?

Through a numerical field survey (using a standard sheet) with the most recent retail price (end consumer), with the deduction of all fees added up to the place of discharge.

4.      How has Article 6.2 been implemented?

Articles 9 of Regulation No. 05/99.

The customs value of imported goods under the provisions of this Article shall be based on a computed value. Computed value shall consist of the sum of:

a)_    the cost or value of materials and fabrication or other processing employed in producing the imported goods;

b)_    an amount for profit and general expenses equal to that usually reflected in sales of goods of the same class or kind as the goods being valued, which are made by producers in the country of exportation for export to the Union;

c)_    the cost or value of the elements listed in paragraphs 1(e), (f) and (g) of Article 4.

A member State may not require or compel any person not resident in the Union to produce for examination, or to allow access to, any account or other record for the purposes of determining a computed value. However, information supplied by the producer of the goods for the purposes of determining the customs value under the provisions of this Article may be verified in a non-member State of the Union by the authorities of a member State with the agreement of the producer and provided they give sufficient advance notice to the government of the country in question and the latter does not object to the investigation.

5.      Questions concerning Article 7:

(a)   What provisions have been made for making value determinations pursuant to Article 7?

Article 10 of Regulation No. 05/99/CM of 6 August 1999 establishes the conditions for determining the customs value in accordance with Article 7.

(b)   What is the provision for informing the importer of the customs value determined under Article 7?

Article 15 of Regulation No. 05/99/CM on customs valuation in member countries of the West African Economic and Monetary Union (WAEMU):

Upon written request, the importer shall have the right to an explanation in writing from the customs authorities of how the customs value of the imported goods was determined.

Please refer to Article 132 of the Customs Code (Act No. 2014-10 of 28 February 2014 on the Customs Code).

(c)    Are the prohibitions found in Article 7.2 delineated?

See Article 10 of Regulation No. 05/99/CM/UEMOA on customs valuation, which provides that: “If the customs value of the imported goods cannot be determined under the provisions of Articles 3 and 5 to 9, the customs value shall be determined using reasonable means consistent with the principles and general provisions of this Regulation and Article VII of GATT 1994 and on the basis of data available in the Union.”

6.      How have the options found in Article 8.2 been handled? In the case of f.o.b. application, are ex-factory prices also accepted?

The tax base in Senegal is the c.i.f. value. In practice:

·_        If the Incoterm is higher than the c.i.f. value, the non-taxable charges are deducted from the invoice to arrive at the c.i.f. value (if the supplier provides value details).

·_        If the Incoterm is lower than the c.i.f. value, the importer must attach additional invoices (freight, insurance, etc.) to obtain the c.i.f. value.

As the f.o.b. (free on board) and EXW (ex works) Incoterms are lower than the c.i.f. value, the file is completed with freight and insurance invoices to arrive at the c.i.f. value.

7.      Where is the rate of exchange published, as required by Article 9.1?

Article 11 of Regulation No. 05/99: “Where the conversion of currency is necessary for the determination of the customs value of imported goods, the conversion rate to be used shall be the one duly published by the Central Bank of West African States (BCEAO) on the date on which the customs declaration is registered.

The rate of exchange is published in the Automated Management of Customs and Trade Information System (GAINDE), which can be accessed by all approved customs agents, as well as other importers with clearance credit.”

8.      What steps have been taken to ensure confidentiality, as required by Article 10?

Article 12 of Regulation No. 05/99: “All information which is by nature confidential or which is provided on a confidential basis for the purposes of customs valuation shall be treated as strictly confidential by the authorities concerned who shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.”

This is also an essential point covered by Article 43 of the Customs Code, which provides that: “Customs officials and all persons required in the discharge of their duties or responsibilities to exercise any functions whatsoever on behalf of the customs administration or participate in the application of the customs legislation, are subject to a duty of professional secrecy, under the conditions and subject to the penalties provided for in the Criminal Code.”

This right of reservation is enshrined in the customs staff regulations, with a commitment to the confidentiality of information obtained in the context of customs and other operations.

9.      Questions concerning Article 11:

(a)    What rights of appeal are open to the importer or any other person?

Article 13 of Regulation No. 05/99:

1._    In the event of a dispute concerning the determination of customs value, the importer or any other person liable to pay duties under the Common External Tariff shall have the right of appeal, without any penalty.

2._    The initial appeal may be to the customs administration.

3._    Notice of the decision by the administration shall be made to the appellant and the grounds shall be set down in writing. The appellant shall also be informed of any rights of further appeal.

4._    If the dispute is brought before a judicial body, the rules of procedure in the courts shall be those in force in each member State.

Article 133 of the Customs Code provides for the possibility, in the event of discrepancies with the customs administration, of lodging an appeal with the Director General of Customs (Article 414 of the Customs Code) or even referring the matter to the arbitration commission for customs disputes (Article 416 of the Customs Code), which is not under the sole authority of the customs administration, and, in the event of disagreement, the possibility of suing the administration in the commercial courts (Article 422 of the Customs Code).

(b)    How is he to be informed of his right to further appeal?

Article 13.3 of Regulation No. 05/99: “Notice of the administration's decision shall be made to the appellant and the grounds shall be set down in writing. The appellant shall also be informed of any rights of further appeal.”

10.    Provide information on the publication, as required by Article 12, of:

(a)(i)   the relevant national laws;

Act No. 2014-10 of 28 February 2014 on the Customs Code is the text containing the legal provisions on customs valuation (Article 18 of the Customs Code)

(ii)   the regulations concerning the application of the Agreement;

Regulation No. 05/99/CM/UEMOA on customs valuation.

(iii)   the judicial decision and administrative rulings of general application relating to the Agreement;

Judicial decisions and administrative rulings of general application are published in the official journal of Senegal.

(iv)   general or specific laws being referred to in the rules of implementation or application.

See Act No. 2014-10 of 28 February 2014 on the Customs Code of Senegal.

(b)  Is the publication of further rules anticipated? Which topics would they cover?

No.

11.    Questions concerning Article 13:

(a)   How is the obligation of Article 13 (last sentence) being dealt with in the respective legislation?

Legislation is implemented as stipulated in Article 13, i.e. a guarantee bond covering duties, taxes and potential penalties allows goods to be released pending resolution of the dispute.

Article 14 of Regulation No. 05/99: If, in the course of determining the customs value of imported goods, it becomes necessary to delay the final determination of such customs value, the importer of the goods shall nevertheless be able to withdraw them from customs if, where so required, the importer provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties for which the goods may be liable.

(b)    Have additional explanations been laid down?

No.

12.   Questions concerning Article 16:

(a)   Does the respective national legislation contain a provision requiring customs authorities to give an explanation in writing as to how the customs value was determined?

Article 15 of Regulation No. 05/99: Upon written request, the importer shall have the right to an explanation in writing from the customs authorities of how the customs value of the imported goods was determined.

(b)    Are there any further regulations concerning an above-mentioned request?

No.

13.    How have the Interpretative Notes of the Agreement been included?

Through memoranda whenever necessary.

14.    How have the provisions of the Decision on the Treatment of Interest Charges in the Customs Value of Imported Goods been implemented?

The Decision on the Treatment of Interest Charges has been implemented through memoranda.

15.    For those countries applying paragraph 2 of the Decision on the Valuation of Carrier Media Bearing Software for Data Processing Equipment, how have the provisions of this paragraph been implemented?

Under Memorandum No. 864 DGD/DEL/DRCI of 25 June 2001, section 6 (document _G/VAL/N/1/SEN/1), dated 27 September 2001, which provides that:

1._    To determine the customs value of imported carrier media for data processing equipment and containing data and instructions, the value of these data and instructions is to be excluded from the value of the carrier media themselves, provided, however, that the invoice clearly and separately shows the cost of the intellectual value and the cost of the media.

2._    The term “carrier media” refers to all forms of media on which data or instructions are recorded in a form usable by data processing equipment. This includes media such as magnetic tapes, disks (including disks for laser-reading systems) and diskettes. However, integrated circuits, semiconductors and similar devices are not considered “carrier media”. Items that may contain integrated circuits, semiconductors or similar devices include home computers, calculators, televisions, video cassette recorders, household electrical appliances, telecommunications equipment and, in general, numerical control machines. The expression “data or instructions” does not cover sound recordings, cinematic recordings or video recordings, which are cassettes, magnetic tapes, disks, films or analogue devices on which sound and/or images are recorded. However, if the sound, film or video data or instructions present on certain software programs are of an ancillary nature only, the software is valued in accordance with the conditions stipulated in paragraph 1 of this section.

3._    In all cases, if the carrier media contain software and the provider has invoiced an overall price, the transaction value to be used must be the invoice price.

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