AMR in customs matters: time limit for appeal in case of an implicit rejection decision

In a decision of January 15, 2019, the Nancy Court of Appeals stated that, in the absence of a specific time limit provided for in the Customs Code, it follows from articles 346 and 347 of the same code that, in the absence of a response from the Customs Administration within six months following the contestation of a notice of collection (AMR), the taxpayer has a period of five years in which to bring the matter before the Court of First Instance (CA Nancy, January 15, 2019, no. 18/01317, Hasbro v. Lorraine Regional Customs and Indirect Tax Department).

In accordance with the provisions of Article 346 of the Customs Code, the time limit for contesting a notice of collection is 3 years from the date of notification.

This challenge is made to the authority that issued the said notice.

The Regional Director of Customs has a period of six months from its receipt to respond to it.

Article 347 of the same code provides that "within two months following receipt of the response from the regional director of customs or, failing a response, on expiry of the six-month period provided for in the preceding article, the debtor may refer the matter to the First Instance Court".

In accordance with these provisions, the taxpayer has a period of two months to refer the matter to the High Court in the presence of an express response from the Customs Administration.

On the other hand, no specific time limit is provided for to seize the High Court in the event of an implicit decision of rejection, i.e. in case of silence kept by the Administration for 6 months.

It must therefore be considered that the appeal may be made at any time, except for the five-year limitation period provided for in article 2224 of the Civil Code.

This is what the Nancy Court of Appeal ruled in its decision of January 15, 2019.

In this case, following an inspection of the regularity of toy import operations, a company was notified, by a statement of offense dated July 17, 2013, of several violations of false declaration of tariff and value when importing products. The stakes were high since the duties and taxes allegedly evaded amounted to 1,942,427 euros. This report was followed by a notice of assessment dated July 30, 2013.

The company had contested this AMR with the Regional Director of Customs, who acknowledged receipt on August 7, 2013. It also referred the matter to the CCED (Commission de Conciliation et d'Expertise Douanière), which issued its opinion on March 22, 2016, notified to the parties on May 13, 2016.

As the AMR's challenge remained unanswered within the 6-month period, the company summoned the D.R.D.I. before the Nancy High Court on January 19, 2017, which declared its action inadmissible because it had infringed the statute of limitations provided for in Article 347 of the French Customs Code.

Indeed, the judges considered that pursuant to articles 346 and 347 of the Customs Code, the company had a two-month period after the expiration of a period of six months from the notification of the opinion of the CCED, a period that expired on January 14, 2017.

However, the referral to the CCED does not constitute a challenge to the AMR and its opinion cannot therefore constitute a response to the challenge made by the taxpayer, as referred to in Articles 346 and 347 of the Customs Code.

In this case, the challenge had remained without response within the 6-month period.

The Nancy Court of Appeal therefore reversed the decision of the judges of first instance. It noted in its decision that "in the absence of a response, this appeal may be made after the six-month period allowed to the administration to respond; this six-month period constitutes a starting point for being able to bring an appeal before the tribunal de grande instance; on the other hand, the analysis of the first judges is erroneous, in that they considered that in this hypothesis, the time limit for appeal was applicable whereas it only concerns the hypothesis in which an express response was given to the appeal, which is not the case here ;

Thus, the request formulated on January 19, 2017 was formulated at the expiry of the six-month period as from the decision of the CCED of March 22, 2016; due to the absence of application of a specific time limit, with the exception of the common law time limit resulting from Article 2224 of the Civil Code, the request should be declared admissible, no end of non-receipt being justified".

The situation is therefore the same as in tax matters, as recently recalled by the Council of State in a decision of February 8, 2019, under the terms of which it ruled that "the time limit for filing a contentious appeal cannot run against the taxpayer as long as an express decision rejecting his claim has not been duly notified to him" (Council of State, February 8, 2019, No. 406555, SARL Nick Danese Applied Research).