Customs disputes are one of the most common types of disputes in Ukraine, and their number is steadily increasing. Almost every day, customs authorities issue decisions or take actions that directly affect the rights and obligations of entities engaged in foreign economic activity. This results in numerous appeals to the courts to protect their rights and legally protected interests. Given that the practice of challenging customs authorities’ decisions is a crucial aspect of ensuring the rule of law in the field of customs legal relations, this article will examine the Supreme Court’s latest relevant positions on the resolution of customs disputes.

The Impact of a Commercial Offer on the Determination of the Customs Value of Goods.

 A commercial offer is merely an indicative price and is not, in and of itself, sufficient to determine customs value. To determine customs value, it is necessary to consider the invoice and other supporting documents that may reflect actual costs.

The Supreme Court reached these conclusions in the ruling of the Cassation Administrative Court (CAS SC) dated February 20, 2025, in case No. 160/33340/23 on a claim filed by a limited liability company against the Kyiv Customs Office seeking to have certain decisions declared unlawful and annulled.

In reviewing the decisions of the lower courts rendered in this administrative case, the CAS of the SC noted that the primary document for determining customs value is the specific price of the goods as stated in the invoice. To accurately determine the customs value, it is necessary to take into account the invoice and other documents confirming the actual costs, in particular transportation costs, if they were not included in the value of the goods.

At the same time, a commercial offer, together with other evidence, is sufficient to determine the customs value if it confirms the price at which the goods were offered for sale. A commercial offer may be used as supplementary evidence, but it is not sufficient on its own to determine the customs value, as it is merely an indicative price and does not constitute a final agreement between the parties.

Resolution of the Supreme Administrative Court of Ukraine dated February 20, 2025, in Case No. 160/33340/23 (https://reyestr.court.gov.ua/Review/125342984)

On the authority of the supervisory body to request additional documents, as provided for in Part 3 of Article 53 of the Customs Code of Ukraine, to confirm the declared customs value.

Customs authorities have the right to verify the accuracy of the customs value calculated by the declarant, but these powers are exercised in the manner prescribed by law; in particular, the request for additional documents to confirm the declared customs value may occur only if there are reasonable doubts regarding the accuracy of the information submitted by the declarant. Such doubts may arise from incomplete documentation submitted to support the declared customs value of the goods, discrepancies between the characteristics of the goods specified in the submitted documents and the results of the customs examination of those goods, a comparison of the declared customs value of the goods with the customs value of identical or similar goods for which customs clearance has already been completed, and so on. The customs authority’s doubts are justified if the documents provided by the declarant contain discrepancies.

This legal position was set forth by the Supreme Court in the Resolution of the Administrative Case Chamber of the Supreme Court dated April 16, 2025, in Case No. 260/10051/23 on the company’s lawsuit against the Transcarpathian Customs Office seeking to have the decision to adjust the customs value of the goods and the notice of refusal to accept the customs declaration, customs clearance for the release or transit of goods and commercial vehicles.

According to the Supreme Court’s findings, the customs authority must have reasonable doubt regarding the correctness of the customs value determination, since the law links this circumstance to the possibility of requesting additional documents from the declarant and grants customs the right to take subsequent actions aimed at determining the actual customs value of the goods.

The customs authority is required to specify the specific circumstances that gave rise to such doubts, the reasons why they cannot be verified based on the documents provided by the declarant, as well as justify the need to verify the questionable information and specify the documents whose submission could dispel doubts regarding their accuracy.

The need to request additional documents is, first and foremost, a means of ensuring that the declarant has correctly determined the customs value.

At the same time, the controlling authority’s power to request additional documents applies only to those documents that make it possible to verify the accuracy or inaccuracy of the declared customs value, and not to all documents provided for in Article 53 of the Customs Code of Ukraine. The declarant’s failure to provide the documents requested by the customs authority may serve as grounds for adjusting the customs value if the submitted documents are insufficient or, taken together, do not dispel objective doubts regarding the accuracy of the information provided by the declarant.

The declarant’s failure to submit the documents specified in paragraphs 2–4 of Article 53 of the Customs Code of Ukraine does not result in unconditional negative legal consequences for the declarant. Failure to submit such documents may result in a refusal to clear the goods at the customs value declared by the declarant and, accordingly, an adjustment of the customs value of the goods only if the customs authority has reasonable grounds to believe that such failure to submit the documents resulted in incomplete and/or inaccurate information regarding the customs value.

Resolution of the Administrative Court of the Supreme Court dated April 16, 2025, in Case No. 260/10051/23 (https://reyestr.court.gov.ua/Review/126667604)

On the illegality of the demand for payment of compensatory duties pursuant to a decision of the Interdepartmental Commission on International Trade in a case concerning the customs clearance of a vehicle for personal use in Ukraine.

Vehicles imported by citizens for personal use and not intended for sale are subject to customs clearance without payment of compensatory duties, provided that the importation of such goods does not cause harm to domestic producers.

This legal position was set forth by the Supreme Court in the Resolution of the Administrative Court of the Supreme Court dated June 5, 2024, in Case No. 200/674/19-a, based on a claim filed by an individual against the Donetsk Customs Office seeking to have the refusal notice for acceptance of a customs declaration, customs clearance for release or transit of goods, and commercial vehicles declared unlawful and annulled.

In reviewing the decisions of the lower courts on appeal and determining whether the requirements of the decision of the Interdepartmental Commission on International Trade regarding the application of definitive countervailing measures against imports into Ukraine of goods originating in the Russian Federation apply, if such goods are classified under commodity code 8703 in accordance with the Ukrainian Classification of Goods for Foreign Economic Activity (UKT ZED), to vehicles for personal use imported into the customs territory of Ukraine by its citizens, the Supreme Court noted that the Commission’s decision governs the legal relationships arising when entities engaged in commercial and legal relations import into the customs territory of Ukraine products (goods) intended for sale, the importation of which into the customs territory of Ukraine causes harm to domestic producers of similar products (goods).

At the same time, the plaintiff is not an importer; the goods were imported by him for personal use, not for sale, and the importation of these goods does not cause harm to domestic producers.

Under these circumstances, the Supreme Court concluded that the customs authorities’ demands to adjust the customs value declared by the plaintiff are unfounded.

Resolution of the Administrative Court of the Supreme Court dated June 5, 2024, in Case No. 200/674/19-a (https://reyestr.court.gov.ua/Review/119566246).

On the Change of a Commodity Code in the Context of the Procedure for Sampling Goods by the Customs Authority and the Increase in the Import Duty Rate

The form of the customs authority’s decision on determining the commodity code was unlawful because it did not comply with the requirements of the law, in particular Part 2 of Article 356 of the Customs Code of Ukraine. Adopting such a decision in the form of a resolution by the head of the customs authority on a customs inspector’s memo is not justified. Therefore, the basis for the claim regarding the procedure for taking samples of goods is well-founded if the violation of the customs control procedure contradicts the requirements of the Customs Code of Ukraine and indicates the illegality of the decision adopted regarding the determination of the commodity code.

The Supreme Court reached these conclusions in the Resolution of the Administrative Case Chamber of the Supreme Court dated March 25, 2024, in Case No. 260/585/22, based on a claim filed by a limited liability company against the Transcarpathian Customs Office seeking to have the decision on the determination of the commodity code declared unlawful and set aside.

The key issue to be resolved during the cassation review was the application of Part 2 of Article 356 of the Customs Code regarding the legality of taking samples of the goods for expert examination based on a memorandum bearing the resolution of the head of the customs authority or his or her deputy, as well as whether this violation constitutes grounds for declaring the classification decision—adopted based on the results of the expert examination—unlawful and for its annulment.

Pursuant to Part 1 of Article 356 of the Customs Code of Ukraine, the taking of samples (samples) of goods is carried out by officials of the customs authority as part of customs control and customs clearance procedures for the purpose of establishing characteristics that are decisive for: (1) the classification of goods in accordance with the Ukrainian Classification of Goods for Foreign Economic Activity (UKT ZED); (2) verifying the declared customs value of goods; (3) determining the country of origin of goods; (4) determining whether goods constitute narcotic drugs, psychotropic substances, their analogues, precursors, or potent or toxic substances; (5) determining whether the goods are items of artistic, historical, or archaeological value; (6) determining whether the goods are manufactured using intellectual property protected by law.

The provisions of Part 2 of Article 356 of the Customs Code of Ukraine stipulate that the taking of samples of goods shall be carried out by authorized officials of the customs authority on the basis of a reasoned written decision by the head of that customs authority or his or her deputy.

In addressing the key issue in this case, the panel of judges noted that the Supreme Court has already repeatedly addressed the issue of the form of the decision by the head of a customs authority or his or her deputy regarding the taking of samples (specimens) of goods, as provided for in Part 2 of Article 356 of the Customs Code of Ukraine. For example, but not exclusively, in its rulings dated July 28, 2021 (Case No. 815/3903/17), May 28, 2020 (Case No. 818/1205/16), dated August 14, 2018 (Case No. 818/3408/15), dated November 12, 2020 (Case No. 808/1697/15), dated July 29, 2021 (Case No. 160/11199/19), dated April 13, 2021 (Case No. 818/294/17), dated May 27, 2021 (Case No. 820/6482/16), dated February 25, 2021 (Case No. 815/1557/17) The Supreme Court concluded that a written, reasoned decision as provided for in Part 2 of Article 356 of the Customs Code of Ukraine cannot be adopted in the form of a resolution by a supervisor on a customs inspector’s memo. Under these circumstances, taking into account the provisions of Article 19 of the Constitution of Ukraine, there are grounds to believe that the administrative functions of authority were exercised in a manner not provided for by law when the decision on determining the commodity code was made.

The court of cassation, while reviewing the aforementioned administrative case No. 260/585/22, also upheld the Supreme Court’s conclusions and found no grounds to deviate from them.

The Supreme Court established that the customs authority did not dispute that the basis for taking samples of the goods presented by the plaintiff for customs clearance was the resolution of the head of the customs post stating “I agree with the proposals” on the memorandum.

Thus, taking into account the established case law of the Supreme Court on this issue, the panel of judges found that the customs authority’s decision to change the commodity code did not comply with the requirements of Part 2 of Article 2 of the Code of Administrative Procedure of Ukraine, was unlawful, and was subject to annulment, given the customs authority’s violation of the procedure for taking samples of goods established by the Customs Code of Ukraine.