Kommersant figured out the details of regulating the export of gold by Russians abroad

As Kommersant found out, the current rules for the export of gold by citizens from the country, which the Ministry of Finance wants to limit, are ambiguous and confusing. In general, there are no formal restrictions, as well as the obligation to declare gold moved outside the Russian Federation for personal use. But customs, based on fairly general criteria, may decide that the export is for commercial purposes, and this is already fraught with administrative and criminal liability. The risks are serious and difficult to predict, and the chances of challenging fines are low, lawyers warn: customs wins more than 70% of court cases.

“Kommersant” figured out the details of regulating the export of gold (including bars and coins) by Russians abroad for personal use. The issue became relevant last week: the Ministry of Finance announced plans to limit the export of gold (see “Kommersant” dated January 10). After this, it turned out that the supposedly “current rules” widely replicated, including by lawyers, are far from reality (see “Kommersant” dated January 12).

We are talking about the movement of metal outside the EAEU. “When leaving the Russian Federation for the EAEU countries, there is no customs control; the union has a single customs space,” emphasizes Alexander Kirilchenko, head of customs law and international trade practice at BGP Litigation. Customs control is not applied to goods exported to the EAEU countries (including gold), the Federal Customs Service confirmed to Kommersant. Although, even when leaving the Russian Federation for another EAEU country, lawyers advise you to familiarize yourself with the internal rules of the latter, which may contain restrictions on the import of certain goods or their quantities.

No restrictions

According to paragraph 4 of Art. 266 of the Customs Code (TC) of the EAEU, goods for personal use, regardless of their value, weight and quantity, are exported without paying duties. However, in paragraph 5 of Art. 256 of the Labor Code states that the Eurasian Economic Commission (EEC) can determine “quantitative characteristics” and “additional criteria for classifying goods transported across the customs border of the union as goods for personal use.” Appendix 1 to the decision of the EEC Council No. 107 of December 20, 2017 (on limiting the weight of personal goods to 50 kg and the cost of up to €10 thousand for air transport – this is often the figure quoted for gold) “applies only to imports, but not export of goods,” notes Roman Khaminsky, partner of VKNK law firm.

Also clause 9 of Art. 256 of the Labor Code allows the EEC to create a list of goods for personal use, the movement of which across the border of the union must comply with prohibitions and restrictions. But this does not apply to export and “there is no gold on the list,” clarifies Vladimir Chikin, partner at Timofeev, Gusev and Partners. The ban on the export of certain goods, introduced by the Russian Federation after the start of the SVO, did not affect gold either. “Decree of the President of the Russian Federation No. 81 established a ban on the export from the Russian Federation of cash foreign currency in the equivalent of $10 thousand, but there is no ban on the export of gold bars and, in principle, gold,” notes Pepeliaev Group partner Alexander Kosov.

From the comments of the Federal Customs Service and the current legislation, it follows that there are neither weight nor cost limits on the export of gold for citizens for personal purposes.

A citizen does not need to fill out a passenger customs declaration when leaving the Russian Federation if he is transporting gold only for personal use. “There is a list of cases when an individual is required to submit a declaration when leaving, for example, when exporting cultural property, weapons, plants and animals from the Red Book. But gold does not apply to them (clause 1 of Article 260 of the Labor Code),” confirms Mr. Kirilchenko.

Thus, Alexander Kosov emphasizes, “if a citizen takes out gold bullion for personal use in accompanied luggage, regardless of the value, you can not declare it and go with it through the green corridor.” Problems with customs will arise if there are suspicions that gold is not being exported for personal use, he clarifies. And here various “buts” begin.

Customs in doubt

Lawyers warn that when passing through the “green corridor,” customs officers may have “doubts about the purpose of the goods.” “The customs authority may decide that the exported goods are not for personal use and have a commercial purpose (Part 3 of Article 188 of the Federal Law of August 3, 2018 No. 289-FZ “On Customs Regulation in the Russian Federation”),” explains Mr. Kosov .

Customs doubts are fraught with serious consequences. “If the purposes of export are recognized as not personal, this is a commercial turnover that requires compliance with the rules (according to Appendix 14 to the EEC decision No. 30 dated April 21, 2015, an export license, an Assay Office certificate and registration with specialized customs authorities are required), and their violation entails responsibility,” says Mr. Kirilchenko.

The Federal Customs Service clarified that a violation will arise “if bullion is exported by an individual in a fraudulent manner under the guise of goods for personal use.”

The department said that throughout 2023, customs authorities “repeatedly recorded and suppressed cases of such gold smuggling.” In a number of cases, the Federal Customs Service added, export is carried out by “organized groups of persons allegedly traveling to the EAEU countries, which allows them to avoid customs control.”

Formally, customs officers make conclusions based on the criteria set out in paragraph 4 of Art. 256 TK, says Alexander Kirilchenko. But these criteria can hardly be called specific: the citizen’s oral or written (in the declaration) statement, the nature and quantity of goods, the frequency of an individual crossing the border and the frequency of transportation of goods are taken into account. “The criteria by which customs decides whether to classify goods as personal use or not are vague,” admits Mr. Kosov.

“As part of customs control, the inspector may also require the submission of documents confirming the origin of gold bars,” the Federal Customs Service adds. Customs officers have internal rules with more specific criteria, based on which they decide on the purpose of exporting goods, but these rules are non-public so that “unscrupulous citizens cannot bypass them,” says a Kommersant source close to the department.

The consequences of customs officers’ doubts depend on a number of factors.

If the value of gold exported with violations exceeds 1 million rubles, a person can be prosecuted under Art. 226.1 of the Criminal Code of the Russian Federation for smuggling, since gold, along with other precious metals, is classified as strategic goods (RF Government Decree No. 923 of September 13, 2012), explains Roman Khaminsky. If the cost is up to 1 million rubles. inclusive, Mr. Kirilchenko adds, the violator faces an administrative fine from 50% to 200% of the value of the exported goods or its confiscation or a fine together with confiscation under Art. 16.2 of the Code of Administrative Offenses of the Russian Federation (non-declaration or false declaration of goods).

Better to declare

Thus, according to the general norms of the Labor Code, there seem to be no restrictions when an individual exports gold as a good for personal use outside the EAEU. However, the legality of this operation depends on whether customs authorities classify gold as personal goods. There is no specific exhaustive list of such goods, just as there are no clear grounds on which the purposes of export can be considered not personal, but commercial.

In this regard, although citizens do not have an obligation to declare gold exported for personal use, lawyers recommend that citizens do so. The possibility of voluntary declaration is established in clause 10 of Art. 260 TC EAEU. “Submission of a passenger customs declaration significantly reduces the risk of administrative or criminal liability,” says Vladimir Chikin.

It is also worth declaring the metal upon export if you plan to bring it back. “In the absence of declaration, upon re-import, gold will be added to goods purchased abroad. And if their total value exceeds the duty-free import limit (€10 thousand by plane), and you have not declared them, then this again may entail at least administrative liability,” clarifies Mr. Chikin. The Federal Customs Service also recommends filing a passenger customs declaration “to avoid problems with re-importation.”

Non-personal goods

The situation became further complicated after the introduction of an export duty on gold in October 2023 (Government Resolution No. 1538) – the question of the possibility of classifying it as goods for personal use of citizens generally became debatable, lawyers say. According to paragraph 7 of Appendix 6 to the decision of the EEC Council No. 107 of December 20, 2017, goods for personal use do not include those “for which export customs duties are established by the legislation of a member state of the union.” Based on this, the introduction of export duties on gold, including bullion, can be interpreted as excluding it from personal goods, notes Vladimir Chikin:

“That is, formally, legally, gold bullion cannot be exported abroad by individuals for personal use.”

His concerns are shared by Mr. Kirilchenko.

So far, lawyers admit, customs officers do not apply these norms to citizens and their goods for personal use. Nevertheless, such an interpretation may arise, “the risk looks significant,” Mr. Chikin emphasizes. He considers it necessary to introduce amendments, including to the decision of the EEC Council of December 20, 2017 No. 107, in order to “remove legal uncertainty.”

Until the legislation is clarified, lawyers believe, citizens will only have the instrument of voluntary declaration – in this case, if claims arise, the gold will most likely be confiscated, but they may be released from liability. Moreover, the prospects for legal disputes with customs officers do not look very attractive for citizens.

The court will not save

Roman Khaminsky notes an increase in the number of administrative cases initiated by customs officers. In particular, according to the Federal Customs Service itself, 69,381 cases were initiated under Chapter 16 of the Code of Administrative Offenses (violation of customs rules) in the nine months of 2023, compared to 65,029 for the same period in 2022. Of these, the majority are smuggling compounds (Articles 16.1, 16.2, 16.3, 16.4 of the Administrative Code), the number of which increased by 16% (to 49,472 cases).

In the courts, however, the picture is different. The total number of cases considered challenging administrative penalties for violations under Chapter 16 of the Code of Administrative Offenses for the first half of 2023 decreased by 43.4% (there is no data for the entire year yet), and the share of cancellations increased by 13%. Thus, according to information from the Supreme Court Judge, in January-June 2022, the courts considered 694 cases, as a result of which 105 decisions were canceled (15%) and 59 (9%) were changed. In the first six months of 2023, 393 such cases were considered, as a result of which 110 (28%) decisions were canceled and 65 (17%) were amended.

Mr. Khaminsky clarifies that the courts can cancel the decision not only if all the circumstances or the violation event itself are not proven, but also if they recognize it as insignificant.

From the reasons given by him for court decisions, it follows that the sanction is most often left unchanged if the person did not declare the goods at all, did not declare all of them, or indicated that he was carrying a different product.

As for criminal liability, according to the Supreme Court Judge, in 2022, 301 people were found guilty of smuggling under Part 1 of Art. 226.1 (without aggravating circumstances) and another 45 people under parts 2 and 3 (by an official using his official position, by an organized group, etc.). In the first half of 2023, there were 114 and 23 such people, respectively. In criminal cases involving gold, notes Polina Panova, a lawyer in the practice of customs law and international trade at BGP Litigation, “the main argument against an individual is the lack of indication of precious metals or products made from them in the passenger customs declaration,” and the main task for a citizen is “to prove that the exported The goods are intended for personal use.”

Against this background, experts and market participants note, the changes in regulation that the Ministry of Finance is planning can make the rules clearer and safer for citizens, even if they introduce restrictions.

Anna Zanina, Ksenia Dementieva