(solamente en inglés)

Introduction

The International Convention on The Harmonized Commodity Description and Coding System (HS Nomenclature) from the Customs Co-operation Council⁽²⁾ (C.C.C.) designated the code (heading) 2716 to Electricity energy. The heading is under chapter 27, which comprehends “Mineral fuels, mineral oils and products of their distillation; bituminous substances; mineral waxes?

Under the HS 2716 heading, several countries have regulated the international trade of electricity energy. Controls and specific customs procedures have been designed to deal with its particularities. For example, due to practical reasons, customs clearance is done after the entry of the good in the territory and according to measurements at the power plant. Electricity energy is thus considered to qualify as a good and by that subject to the rules of the World Trade Organization (WTO).

WTO Customs Valuation Agreement

Among the WTO rules for the trade of electricity energy is the application of the WTO Customs Valuation Agreement (CVA). The CVA also known as the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 “aims for a fair, uniform and neutral system for the valuation of goods for customs purposes ?a system that conforms to commercial realities, and which outlaws the use of arbitrary or fictitious customs values.?⁽³⁾

The Agreement stipulates that customs valuation shall, except in specified circumstances, be based on the actual price of the goods to be valued, which is generally shown on the invoice. This price, plus adjustments for certain elements listed in Article 8, equals the transaction value, which constitutes the first and most important method of valuation referred to in the Agreement.

Electricity energy trade contract

The standard trade contract concerning electricity energy has at least two clauses worth consideration for the national Customs authority when trying to obtain the transaction value, price actually paid or payable: 1) Commitment of payment for mininum contracted quantities, known as “take-or-pay?provisions and 2) Payments relating to construction and maintenance of the transmission system in the exporting country.

The first consideration is the “take-or-pay?clause. The “take-or-pay? clause is a provision, written into a contract, whereby one party has the obligation of either taking delivery of goods or paying a specified amount. This is used in some contracts as a method to ensure that the transaction occurs. For example, a banana farmer will enter into a take-or-pay contract with a fruit retailer so that the retailer will buy all the bananas from the farmer or pay a provision for not buying them.

Nowadays it is common to have “take-or-pay?clauses in electricity energy contracts. The importer is obliged to pay a minimum provision for consumption, even if at a certain period little of electricity energy is imported/consumed.

The challenge for Customs authorities is whether the “take-or-pay? payment forms part of the transaction value, price actually paid or payable, and therefore should be taxable or if it should be considered a kind of penalty/premium and does not relate to the value of the goods.

The practical case divides experts opinions and so far there are no guidelines from the Committee on Customs Valuation (CCV) or the Technical Committee Customs Valuation (TCCV).

The second consideration deals with the payments relating to construction and maintenance of the transmission system in the exporting country. It is a known fact that the trade on electricity energy demands the deployment of heavy infrastructure.

In many cases the importer bears the cost of construction and maintenance of the transmission lines in the exporting country in order to import the electricity energy. The costs are carried in the country of exportation and previous to importation.

The question for Customs authorities is whether the payments that the importer must make for the construction and maintenance of the infra-structure are directly related to the sale of the good. Customs valuation of imported electricity energy should or should not include such costs?

Here again no consensus is reached and the question remains open to different national approaches and distinct WTO CVA applications. In conclusion, the WTO CVA is not uniformly applied and leaves some open issues to be dealt on by national legislations.

Conclusion

Finally one must realize that many countries have national or regional taxes over electricity energy and thus the WTO CVA plays an important role. Therefore the adequate application of the WTO CVA reflecting on the countries valuation and taxation of electricity energy is relevant in order to create positive influences to the market trade development.