Philippines: Adopting the Transaction Basis for Customs Valuation18/05/2012 169
Ramon L.Clarete - Professor of Economics, University of the Philippines.
This study describes the challenges faced by customs officials in the Philippines when they adopted transaction valuation to facilitate imports, and the way in which they overcame these challenges. The Philippines government needed to adopt its international treaty obligations into domestic law, and it did that with two laws. It enacted Republic Act (RA) 8181 in 1997, which enabled transaction valuation reform. However, various obstacles hindered the implementation of this law, and so in 2001 the government adopted RA 9135 to fix the problem in RA 8181 so as to authorize post-entry audit systems.
There had been two major concerns in the Philippines regarding the country’s obligations to shift its customs values from notional published values to transaction values. On the part of the customs authorities, they expected customs collection to go down as importers took advantage of their legal rights, undervalued their imports with fake invoices knowing that customs authorities would never know on time that they did so and so paid lower duties and taxes than they ought to. On their part, domestic producers were fearful that implementation of this obligation would erode their trade protection. The Philippines has nevertheless implemented its obligation and has used transaction values in customs assessments since 2000.
Three and a half year later, the then Customs Commissioner, Antonio M. Bernardo, has been pleased to see that customs collections have been going up. However, domestic producers are still concerned and keep adjusting to these changes. This study documents the policy reform process, assesses the impact of the reform and highlights the tasks yet to be done to implement transaction valuation reform effectively and properly.
I. Why reform customs valuation?
In 1996, when the Philippines enacted RA 8181, its customs valuation procedures deserved a major overhaul, at least from the perspective of reducing corruption and facilitating trade. Its pre-reform rules virtually allowed customs authorities to exercise wide discretion and compel importers to make deals with customs authorities to secure the most privately profitable terms for their businesses, in particular because of high tariff protection. Multiple customs valuation rules had been a tradition since RA 1937 in 1958, when customs authorities could legally calculate duties and tax assessments based on wholesale prices in exporting countries, with domestic prices adjusted appropriately to make these comparable to border prices or invoice values. That was because the law failed to specify when a particular rule should be employed. Because it also prescribed high tariff protection in order to protect domestic industries, RA 1937 sowed the seeds of corruption in customs administration in the Philippines.
The reforms following RA 1937 aimed at undoing the abuses of customs officials. Since 1972 there have been efforts made to publish home consumption values, defined to be the wholesale price of the good at about the time of exportation from the principal markets of the exporting country, and to delegate to the Philippine consular office staff the task of gathering data on home consumption values (HCV) and certifying the authenticity of these values. The list of published values failed to halt the problem because the values were not updated with the market, only 20% of the imported merchandise had published values, and only 10% had correct home consumption values.(1) Although importers could obtain consular certification of the authenticity of values to spare them the extra cost of an outdated and incomplete list of published values, this remedy nonetheless continued the regime of virtually multiple valuation rules, increased business transaction costs with the customs agency, and possibly spread the integrity problem rooted in customs administration to consular offices.
The next initiative came in March 1987, when through Executive Order (EO) 186, customs authorities used fair market values, which were defined as the wholesale price of the merchandise being exported to the Philippines in the principal market of the exporting country at the time of exportation or, in the absence of that information, that of a similar good being sold in the Philippines. The EO also ordered the use of the actual cost of freight and insurance instead of an across-the-board 10% surcharge to cover such costs and incorporate other expenses needed to bring the goods to the Philippines to obtain the dutiable value. The Bureau of Customs continued to maintain a list of published values of HCVs, but stopped making consular officials responsible for customs administration functions.
With hardly any resulting improvement, EO 186 had to be complemented by a pre-shipment inspection (PSI) requirement to authenticate the declared values of imported merchandise. In 1987 the government contracted the services of the Swiss-based Société Générale de Surveillance (SGS) to do pre-shipment inspections for imported merchandise with a value of at least US$500 coming from Japan, Hong Kong and Taiwan. The SGS issued a Clean Report of Findings (CRF) to the Bureau of Customs, which indicated the validated dutiable value after conducting an inspection in the exporting country. The coverage of the SGS pre-shipment inspection contract was extended to all countries and all imported merchandise in 1992.
Although PSI was generally regarded as a protection against the abuses of customs officials, the Philippines was not getting value for the 2 to 3 billion pesos a year it spent on this contract, say PSI critics, who remained unconvinced of the company’s contribution to customs collection. Thus, in April 2000, when the Philippines had to implement RA 8181, the government decided not to renew the contract with SGS and stopped PSI altogether.
What was seen as the promising reform needed to weed out corruption and reduce business transaction costs with the customs agency, was to implement the WTO’s transaction valuation rules. As a founding member of the WTO, the government planned to adopt the rules into its domestic law. The rules require members to use transaction value in customs assessments, which is defined as the price actually paid or payable for the goods when sold for export to the territory of the importing country. Besides the invoice value, transaction value covers as well brokerage fees, cost of containers, packing, cross-border transportation including loading, unloading and handling charges, and the cost of insurance. Expenses which may not be reflected in the invoice but are generically part of the cost of making the goods available to the consumers in the importing country include commissions, royalties and licence fees. These are counted as part of the transaction value of the merchandise. The positive point regarding these rules is their anticipation of the likely situations when computing transaction values. The rules prescribe six methods of computing transaction values and the conditions for using each method.
II. RA 8181: a good attempt given the constraints
When the Philippines government incorporated into domestic law its legal obligations under the WTO’s transaction valuation agreement in 1996, the political atmosphere in the country was become increasingly hostile to WTO compliance laws. To give legal weight to these obligations only served to sustain the confrontation between those against globalization and those behind the integration of the economy into the global trading system.(2)
The chairman of the Ways and Means Committee of the Senate in 1996, Senator Juan Ponce Enrile, assumed the primary task of shepherding the bill on transaction valuation through the eleventh Congress. The House of Representatives had approved House Bill (HB) 3946 on transaction valuation reform and passed this on to the Senate for its consideration. The timing of this bill was good. The congressional leadership at that time and then President Fidel Ramos fully backed its authors. After all, compliance with the country’s WTO obligations was the order of the day for all developing country members of the WTO.
Senator Enrile had previously served as Commissioner of Customs in the government of former President Ferdinand Marcos. As with all customs commissioners, he focused on increasing customs collection by reducing technical smuggling and corruption. Reportedly, Marcos had personally asked him to take the Commissioner’s post when customs collection was seriously declining in the 1970s. He knew how tax evaders and corrupt officials worked and that there was still a good number of them in the country and at the Bureau of Customs. Thus he was convinced that the proposed transaction valuation reform had to have a safeguard to assure successful reform.
The action taken by the Senate was to retain the use of published values to deter undervaluation, even as transaction values were ordered to be used for customs valuation purposes starting in 2000. The use of published values per se is in compliance with the WTO’s transaction valuation rules, if the prices published are transaction values at the time the merchandise is imported. In the Philippines, however, the published values were home consumption values, not updated in line with the market,(3) neither were the data comprehensive enough to cover all possible imported merchandise. Thus it was likely that the use of published values as ordered in RA 8181 would be inconsistent with transaction valuation rules.
The Bureau of Customs officials in 1997 had pointed to the likely legal problem of including in RA 8181 the use of published values and the likely implications for customs administration in having two valuation rules. The chairman of the Ways and Means Committee in the Senate appreciated this concern and asked customs officials to suggest an alternative safeguard. Since the officials were unable to propose any at that time RA 8181 was approved including published values.
Adjusting import assessment procedures
The customs agency adjusted its import assessment system to implement RA 8181. Pre-shipment inspection had to go, customs officials having concluded that retaining the PSI for valuation purposes would only create problems; they decided not to extend their PSI contract with SGS. The Commissioner, however, extended SGS services for three months or until 31 March 2000 to give the bureau the opportunity to master the new systems and procedures under RA 8181. There would be shipments in those three months that would continue to be processed using the PSI system and others that would then be covered by the customs orders implementing RA 8181.(4)
The value range information system (VRIS) was introduced to deter attempts to undervalue imported merchandise. The system consists of a database giving high and low transaction values of the merchandise imported in commercial quantities to the Philippines. If the declared value of a given shipment falls outside the range, the importer would have to show the relevant documents to the Valuation and Classification Review Committee (VCRC) to support his declared value. According to Philippines customs authorities, Article 17 of the WTO Customs Valuation Agreement allows the use of the VRIS for validation purposes. If the documents presented failed to remove reasonable doubt, the importer would need to post a bond to support the conditional release of the shipment.
As SGS’s PSI contract ended in March 2001, the Super Green Lane (SGL) facility became operational. The SGL is a facility meant for regular importers, most of whom were concerned about harassment in the post-PSI import processing system. To use this facility, an importer would need to be accredited by the bureau as a low-risk importer. In theory, the SGL goods require only an hour to process, and processing simply involves the matching of payment of duties and taxes with assessment.
SGL merchandise does not go through the bureau’s selection system. Examination of goods may be conducted at random and at the premises of the importer. SGL importers are subject to post-release audit, the purpose of which is to verify whether their import activities are in accord with the bureau’s and other government agencies’ regulations and to help these importers improve compliance.
RA 8181 had two valuation rules: published official and transaction values. If they differed, customs authorities chose the higher of the two.(5)
III. RA 9135: improving the law
The Philippines customs officials realized that using published values as laid down in RA 8181 would only complicate customs administration. However, they needed a proposed alternative to published values before they went back to Congress to ask for an amendment of the law. When the chairman of the Senate Ways and Means Committee asked them for an alternative to published values to assure revenues, the customs officials were not ready with a good answer. They had heard about customs audits from training programmes sponsored by the Asia Pacific Economic Co-operation council (APEC) and executed by individual governments, but did not know how the audits were carried out in the countries that used them.
The Bureau of Customs took a political gamble in asking Congress to amend the law by removing the use of published values and giving the bureau the power to undertake customs audits. There were those who advised customs officials to fix the problem of RA 8181 with appropriate regulations and not ask Congress for an amendment. However, the customs officials thought they could win the amendment they sought for, having gone through the implementation issues with respect to RA 8181 and improved their understanding on the concept and operational aspects of post-entry audits.(6)
Post-entry audit: a licence to abuse?
In late August 1999 the House of Representatives Ways and Means Committee, then chaired by Representative Danilo Suarez, held its first public hearing on HB 8011, supported by the Bureau of Customs, seeking to amend RA 8181.(7) In this bill, the customs authorities sought to replace published values with post-entry audits to assure revenues. Before RA 9135 became law in 2001, customs authorities did not release goods to their owners until they had determined that such goods complied with the customs code of the Philippines, the implementing regulations thereof and relevant regulations of other government agencies. The transaction valuation rules of the WTO, however, conferred legal rights on importers with respect to valuation. The declared transaction value, supported appropriately, is the dutiable value, unless the customs authorities have evidence to the contrary. This then implied a paradigm shift in customs supervision from front-end to back-end control, which facilitates trade. Post-entry customs audit is the primary tool of the latter approach.
The Chamber of Customs Brokers, headed by Leonides David, supported HB 8011 but opposed a provision related to post-entry audit obliging his members to keep import records for five years and assigning penalties for failure to do so. David pointed out to the committee that although brokers were in possession of authenticated copies of original import documents, they could not ascertain whether the document they processed contained truthful declarations by their importer-clients.
David’s concern was typical of the private sector’s general discomfort with the Bureau of Customs’ proposed audit powers. With a negative perception of tax audits as carried out by internal revenue auditors and of the integrity of customs officials, importers saw in customs audits opportunities for abuse, harassment and corruption at their expense.
Members of the committee expressed reservations about a possible abuse of the power to audit. Representative Bueser, a committee member, sought to limit the proposed audit powers of the bureau. Representative Jesli Lapuz, a co-author of HB 8011, leaned towards limiting these powers to ‘questionable imports’, which the then Deputy Customs Commissioner Villanueva said could amount to as much as 10% of total imports, and towards reducing the legally prescribed period during which import transactions could be audited. Lapuz declared that the bill should be worded to allay fears that the shift to transaction values meant that importers and brokers would have to be alert for five years waiting for a possible audit by the bureau. Representative Suarez preferred the use of compulsory acquisition to deter undervaluation but remained open to the idea of audits.(8) The brokers’ association disagreed with compulsory acquisition, saying that this would dampen trading.
These concerns significantly shaped the plans as to how the bureau intended to implement custom audits. Those to be audited, said Villanueva, would be selected following the risk selection criteria that the Department of Finance would have to approve and the bureau would implement using information technology and in a manner that was transparent. The selection of those to be audited and the preparation of the audit agenda covering the audit issues that needed to be raised during a field audit would be undertaken by a different unit from that of field auditors. The bureau requested an additional appropriation to upgrade its computer system. The prescriptive audit period was reduced from five to three years, but the brokers failed to get an exemption. Villanueva declared that the bureau was ready to let pre-shipment inspection go and instead use post-entry audit. In the fourth and final public hearing of the committee,(9) the bill’s co-author, Representative Herminio G. Teves, assured the committee that the post-entry audit was a compliance assistance and revenue assurance measure.
‘Going beyond our commitment’
Amending RA 8181 was ‘going beyond our commitment’, said Bernardo Mitra, representing the Petro-chemical Manufacturers Association of the Philippines (PMAP) during the second public hearing by the Senate Ways and Means Committee.(10) The leaders of a few domestic producer groups, such as Joseph Francia of the Federation of Philippine Industries (FPI), went as far as to ask for a postponement of the implementation of even RA 8181, because the government, he asserted, was not ready. The FPI was concerned about giving a legal right to importers with respect to value declaration when the government was not prepared to prevent undervaluation and did not have an equivalent substitute to pre-shipment inspection. FPI members were concerned about the erosion of trade protection which transaction valuation rules, he believed, would induce.(11)
During the Senate public hearing representatives of domestic producer groups made their case that RA 8181 was better because it incorporated the government’s standard on valuation with published values. If customs authorities wanted post-entry audit powers, then the bill ought to have this as its sole purpose and not amend RA 8181. They took issue with the six methods of determining customs values, which, they said, widened the discretionary powers of customs officials.
The need to improve RA 8181
The prevailing message at the Senate hearing was that while RA 8181 enabled transaction valuation, it had to be improved in order to reduce discretion, make valuation more transparent and provide the customs authorities with a post-entry audit system to improve compliance and assure revenues. Rey Nicolas, a customs collector, explained that the six methods were alternate, exclusionary and hierarchical methods, and that the proposed bill in fact limited discretion by making the law more systematic and clear on when and on what to use each method. Senator Enrile, answering a representative of the PMAP, said that the Senate wanted to improve RA 8181. If declared transaction values were truthful, no problem would arise. However, if mistakes occurred, the post-entry audit process would sort these out and help importers improve their compliance in subsequent import transactions.
President Arroyo signed RA 9135 into law on 28 April 2001. Besides enabling transaction valuation in the Philippines, this Act is more transparent and more compliant with the WTO customs valuation agreement, removes unnecessary discretion and assures revenues more positively than does RA 8181.
IV. Transaction valuation reform: an assessment(12)
The effect on customs collection
With these reforms in place, customs revenues appeared to increase and not fall, as had been expected. Ex ante studies on the relationship of transaction values and revenues observed that customs revenues would decline from 3.95%to 6.5%.(13) With customs collection accounting for 20% of the government’s income from taxes, the customs authorities had been concerned about undervaluation and what this would do to their collection.
Using the data on collection relating to the three major ports of the country (Port of Manila, Manila International Container Port and Ninoy Aquino International Port) for the period before and after the implementation of the reform (1998-2001), the ex post facto effect of transaction valuation on revenues indicates revenue gains of about 3.7 billion pesos or 2.6% of the 2000-01 collection of the three ports. The analysis suggests that the transaction valuation reform brought down the unit values of imports, which then expanded the base of import tariffs and border taxes. The results suggest that the use of home consumption values ostensibly to preserve, if not increase, tax incomes, ironically appeared to moderate any increase in tax collection at the border, if not reduce it, by impeding the flow of trade.
The effect on customs administration costs
Transaction valuation reform is among the prominent measures that effectively facilitate commerce. Under the auspices of the WTO, the reform is an important step on the road to higher predictability and accountability of procedures world-wide for determining the dutiable value. Because almost all trading countries of the world implement the WTO customs valuation rules, importers and exporters are in a better position to know in advance the amount in duties payable, probably reducing the number of disputes and resulting delays.
It was estimated that before the transaction valuation reform and when the bureau required pre-shipment inspection the total clearance time for imported cargoes ranged from 6.43 to 11.43 days. This period dropped to an average of 5.43 days when the customs valuation reform was implemented, indicating a saving of from one to five days.(14) These improvements enabled the Bureau of Customs to save an average of about 3.7 billion pesos a year, or US$67 per trade declaration. The savings come mainly from terminating pre-shipment inspection: under this reform the work can be done without paying for the valuation-related services of a pre-shipment inspection firm.
V. Concluding remarks: lessons learned
The Philippines customs authorities and private businessmen had serious concerns about this reform. The customs agency feared that its revenue collection would be reduced, since it expected the majority of importers to take advantage of its poor capacity for enforcing compliance. Importers would undervalue their merchandise and pay lower duties and taxes. If government officials were worried that undervaluation would reduce collection, Filipino domestic producers were concerned about the erosion of trade protection. Those in the private sector who stood to benefit from the reform were in no position as yet to fathom out the positive consequences. Thus the prospects of poor collection and import competition dominated the policy discussions at the time the government was adopting this reform.
Three and a half years later revenues have gone up, but domestic producers are concerned. Officials tend to underestimate the business response to price changes and accordingly create implementation problems for themselves. There appears to be a correlation rather than a trade-off between trade facilitation and revenue collection. In pursuit of trade facilitation, customs administration has become cost-effective.
Domestic producers are concerned, particularly those facing potential adjustment costs because of increased imports. However, there are those whose businesses are doing well because of sensible adjustments made by their owners in the face of increased imports due to the reform. Unfortunately, those producers with serious asset specificity problems continue to hope that these reforms can be undone and import competition reduced.
This case study gives the reader an insight into the policy process. Economists tend to focus their analytical energies on defining the equilibrium which promises to bring real income improvements to an economy. It is, however, also important to understand the process of how to get from where we are to the recommended improved state of things. In the Philippines case, transaction valuation reform was carried out twice, the second reform amending the first. It may be useful to draw a few conclusions from this experience.
The policy process is a political transaction involving two groups of stakeholders, each of which takes up and advocates its position in a given spectrum of views about the reform. Other stakeholders at the start of the process are uncommitted; each group of advocates works to form a dominant coalition with the latter in support of its position. At an appointed time, policy-makers and in this case the Philippines Congress decide on a politically acceptable course of action, that is, that which is supported by the dominant coalition.
The process itself involves the raising of relevant issues by a group of advocates to which the other group would have to respond well in order to win over the larger group of uncommitted stakeholders. In the case of RA 8181, those who preferred the status quo formed the dominant coalition. But, interestingly, they did not get all they wanted, which was to block the reform itself and continue with published home consumption values and pre-shipment inspection. They had to compromise and accept some aspects of the law that enabled transaction valuation. The reformers did not succeed because they did not provide good answers in respect of the risk of undervaluation. The resulting law enabled transaction valuation, so decided because policy-makers reached a decision. The synthesis of the policy process was RA 8181.
The exchange of the raising of issues and the responses to them tended to improve the quality of the law. Ideas on how to implement post-entry audits properly were the outcome of brokers and importers asking for safeguards. The number of years during which an importer was legally auditable was reduced from five to three. The law required that the selection of importers to be audited ought to be transparent and replicable and not arbitrary. How to organize the audit group in a way in which discretion was reduced, transparency improved and accountability defined — all these suggestions surfaced because of the policy debates in Congress and clearly improved the initial ideas of the customs authorities about post-entry audits.
The process is a continuous one, and every policy reform has its proper time. The Philippines experience demonstrates that RA 8181 was a poor political transaction measure and as such becomes a stimulus to a continuation of the reform process. True enough, the reformers came back in 1999, this time presenting post-entry audit as a better substitute to published values. They succeeded and RA 9135 amended and improved the 1996 transaction valuation law.
Locking the reform in
The reform does not end with a piece of legislation. There are its implementation and enforcement, which brings this study to a parting remark. It is important for the present Customs Commissioner George Jereos to ensure that there is an impartial assessment of the implementation of customs audits and of the way in which the young post-entry audit group (PEAG) at the Bureau of Customs has dispensed its duty under RA 9135 and EO 160, which created it. The risk to watch out for is that the audit group goes down the path of arbitrary selection of those to be audited and in the search for importers’ violations of the Tariff and Customs Code. The cost of failure of post-entry audits is reduced collections, the lack of or incomplete implementation of regulations, and corruption.
There are other improvements in implementation that the Commissioner may want to consider. One is to improve its product description convention so that it becomes more precise and the list is regularly adjusted in line with the market. This reduces unnecessary friction between customs authorities and importers regarding the use of the value range information system. Finally, the super green lane facility that started out as a means of appeasing anxious regular and honest importers when pre-shipment inspection ended turns out to have been a useful innovation in customs administration. The facility has to be brought up to its full trade facilitation potential and institutionalized, and the appropriate bureau resources appropriately dedicated to the maintenance and upgrading of the facility.
1.- Cited in E. Medalla, Loreli C. de Dios and Rafaelita M. Aldaba (1993), ‘An Evaluation of the Home Consumption Value System’, Journal of Philippine Development, 20 (2), the information was from a survey done in 1987 by the Société Générale de Surveillance (SGS).
2.- The ratification of the Uruguay Round Final Act came first in late 1994. This was followed by legislation on the agriculture tariffication in 1996, which rekindled the 1994 political skirmishes on becoming a founding member of the WTO. When transaction valuation was considered by Congress, the legislators were considering at least four other such WTO laws, including subsidies and countervailing measures, anti-dumping measures and safeguard measures.
3.- As of Feb. 1999, the list of published values reflected 1996 values according to customs officials.
4.- The Bureau officials were not quite ready to abandon pre-shipment inspection, and the week following the approval of HB 8011 they met to adopt a contingency plan to reduce the risk of undervaluation. Customs management planned to outsource the pre-shipment inspection services for three years in order to calculate transaction values to be used to check on the authenticity of the declared values. The competitive bidding for this PSI would take place on 1 April 2000, or after the end of SGS contract. The bidding, they conjectured, might take half a year, during which the bureau would be without any third-party pre-shipment inspection. If it could implement the transaction valuation in that period, the officials would not go ahead with a three-year PSI contract.
5.- See Customs Administrative Order No. 2-96.
6.- In 1998, the US Agency for International Development in the Philippines provided the bureau technical assistance to make them more familiar with the selection of importers to be audited, operational aspects of post-entry audits and other implementation issues related to transaction valuation. Experts on post-entry audit trained customs officials on how to set up an audit unit, on the selection of importers to be audited and the preparation of the audit plan, the conduct of actual audits, and on the management of the entire post-entry audit function. A few officials went on a study tour sponsored by USAID/Philippines to the United States to see how the US Customs Service conducts post-entry audits.
7.- Based on author’s transcription of the House of Representatives (HOR) Ways and Means Committee first public hearing on HB 8011 on 29 Aug. 1999.
8.- A resource person on one of the APEC-sponsored training courses on transaction valuation agreement of the WTO brought the idea to the Philippines. According to a provision in New Zealand’s customs law which has never been used, compulsory acquisition gives a legal right to a customs agency to purchase the merchandise.
9.- Based on the author’s transcription of the HOR Ways and Means Committee fourth public hearing on HB 8011 on 28 Sept. 1999.
10.- Based on author’s transcription of the HOR Ways and Means Committee third public hearing on House approved HB 5623 amending RA 8181 on 15 Aug. 2000.
11.- Based on author’s transcription of the HOR Ways and Means Committee third public hearing on HB 8011 on 7 Sept. 1999.
12.- See R. Clarete (2004), ‘Customs Valuation Reform in the Philippines’, paper prepared for the World Bank, mimeo, April.
13.- Medalla, de Dios and Aldaba (1993).
14.- The numbers reported here have been obtained from UPECON Foundation (2003), ‘A Study on the Measurement of the Time Required for the Release of Goods in the Republic of the Philippines’, report submitted to the Bureau of Customs and Japan International Co-operation Agency.