News / 15.04.2021

Customs authorities may not prohibit photos of audit materials being taken: attorneys of Borenius Russia are establishing new court practice in disputes involving a review of documents

The Federal Court for the North-Western Circuit recognized the right of Borenius Russia’s client to make excerpts and photocopies of customs audit materials.

A desk customs audit was conducted with respect to Borenius’s client. To prepare objections to the audit report, we applied to the customs authorities to review the materials they had gathered.

The customs authority permitted our attorneys to review the audit materials but with a reservation: only a visual examination of the documents was allowed, while the making of excerpts and photocopies was strictly prohibited. To this end, the customs authority referred to the Russian Finance Ministry’s letter containing a restrictive interpretation of the legitimate right to review documents. The established court practice was favourable for the customs authority: a ridiculous ban on copying audit files had been upheld on numerous occasions by courts of different regions.

Following the above approach, the courts of two instances dismissed our claims to have the actions of the customs authority invalidated. The Federal Court for the North-Western Circuit, however, did not agree with the arguments of the lower courts, laying down in its resolution the position which the Borenius’ attorneys persistently defended:

… the right of an audited person to review the files of a customs audit as set out in Law No. 289-FZ obliges a customs authority to ensure that the right is exercised, and such right cannot be restricted in any specific way (such as to a visual examination only).

The circuit court noted that the right to review documents serves to ensure the most efficient preparation of objections to an audit report, and that any restriction of such right unjustifiably breaches the constitutional rights of the parties to a customs relationship.

The position we have achieved is the first and the only one in the court practice to date. We expect it will be widely used when audited persons review the files of customs audits and will provide the framework for court cases arising out of similar disputes.

 

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