▲ Yong-tae Kim, Customs Expert Advisor at LIN LLC

From mid-December 1998 to the end of March 1999, a Polish alcohol smuggling organization, with the help of defendants T, H, and R, smuggled seven shipments from France to Poland.
 
Each shipment contained 28,600 liters (1 truck) or 57,200 liters (2 trucks) of highly pure ethanol (96% purity).
 
Each shipment was initially approved for export to Ukraine under the EU internal transit procedure. During transport, T was responsible for purchasing the alcohol in France and making the payment.
 
T received from the smuggling organization at least 3,000 Deutsche Marks per truck in commission.
 
T’s brother PT, managed the transport together with unidentified Polish individuals, obtained disguised documents, and organized alcohol sales on the Polish black market.
 
H was responsible for transshipping the alcohol—which was transported with forged shipment documents—into rail containers and verifying the forgery status of the  CMR (Convention on the Contract for the International Carriage of Goods by Road) consignment note. H involved R, the manager of S warehouse in the Hamburg free port, in the transshipment process.
 
H received 3,000 Deutsche Marks per transshipped alcohol truck, and R received 1,000 Deutsche Marks per container as commission. The transport went as follows:
 
T ordered the alcohol from the French company G and paid directly (mostly in cash) through the Luxembourg company E. Company G, as the consignor, declared the goods under the EU internal transit procedure via the Frankfurt/Oder border customs.
 
The consignee was registered as ‘V,’ a company in Vynohradiv, Ukraine, which the smuggling organization had established as a disguised consignee. Subsequently, instead of proceeding to the Frankfurt/Oder border customs, members of the smuggling organization drove the trucks carrying the alcohol to Hamburg.
 
Before arriving at the Port of Hamburg, the French accompanying administrative document (DCA)—needed for the alcohol transport—was swapped for a CMR consignment note misrepresenting the cargo as a chemical shipment, listing the consignor with a German address.
 
To make the alcohol appear to have been legally exported under customs supervision, the DCA was falsified by applying a forged export confirmation stamp and returned to company G that had declared the goods under the EU internal transit procedure, through T.
 
After verifying the forgery status of the CMR consignment note, H, together with R, handled the transshipment of the alcohol onto rail containers bound for Poland.
 
To conceal the alcohol cargo, H and R commissioned the transshipment to company I in Campione, Switzerland. Company I, with the help of the freight carrier Rü, transshipped the alcohol cargo disguised as chemicals and then transported it to Poland.

During the transport, H kept in contact with PT and unidentified Polish individuals, providing them with the container numbers of the disguised cargo.
 
Defendants T, H, and R all recognized that German alcohol duties would be incurred if they swapped the transport documents in Germany and evaded customs supervision of the alcohol transport.
 
Nevertheless, none of them submitted the required tax declaration to customs.
 
They believed that since Germany and Poland cooperate on border monitoring, importing the alcohol into Poland from EU with a forged label, designed to represent a legal export, was impossible, and only non-taxed alcohol would be profitable for sale on the Polish black market.
 
The German Federal Court of Justice made the following tax criminal law assessment regarding the conduct of defendants T, H, and R (BGH 5 StR 600/01 – October 24, 2002, ruling):
 
Defendant H intentionally used the forged CMR consignment note for the shipment of chemicals. The forgery H committed extends to the actions of the smuggling organization members who swapped the attached administrative document for the forged CMR consignment note in Germany before the alcohol arrived in Hamburg.
 
As the actions of the smuggling organization members are attributed to H as if they were his own, H is treated as an accomplice to all crimes committed by the members who smuggled the alcohol from France to Poland.
 
Within the smuggling organization, H was responsible for the transshipment of the alcohol and the shipment of the goods to Poland, which required considerable logistical effort and the participation of several companies.

Consequently, H possessed almost exclusive control over the valuable goods within the smuggling organization, based on conspiracy and division of labor.
 
After conspiring with other members of the smuggling organization and swapping the forged CMR consignment note and the DCA, H violated the immediate submission duty of the tax declaration under the Alcohol Administration Act (BranntwMonG).
 
Although only a person with a special obligation to clearly notify facts material to taxation can be a principal offender of tax evasion under AO Article 370, paragraph 1, sub-paragraph 2, this notification duty falls upon H because H is determined to be the direct obligor of the alcohol tax as the one who evaded customs supervision during the internal transit procedure.
 
Customs supervision of the transit procedure for the alcohol transported from France to Germany under the EU internal transit procedure for export to Ukraine was evaded in Germany, and this evasion is attributed to H.
 
Defendant R participated in the transshipment of the alcohol transport in Hamburg at the request of Defendant H. Although this belonged to his area of responsibility, he held a significantly lower rank within the smuggling organization than Defendant H, and the compensation R received was considerably less than the remuneration received by Defendants H and T.
 
Nevertheless, R is regarded as an accomplice and not a mere accessory, as he held significant control over the main process of the overall criminal activity. This is because the alcohol transshipment took place under the control of R, the manager of S warehouse.
 
Furthermore, R independently communicated with company I, which was commissioned to perform the transshipment for the purpose of concealment. Only through R, who was in this critical position, could H obtain the container numbers that were absolutely necessary for the Polish principals to receive the alcohol-filled containers.
 
Defendant T is deemed a principal offender of tax evasion by omission because he was under a personal duty to submit the tax declaration. T did not directly and personally participate in evading customs supervision of the alcohol during the EU internal transit procedure.
 
However, the acts committed by the smuggling organization members during the alcohol transport, in furtherance of the conspiracy, are attributed to T, and T is treated as a 'carrier.' T’s actions are evaluated not as merely assisting the actions of others, but as part of the actions of all participants.
 
T, who received 3,000 Deutsche Marks per transport as compensation for participating in the crime, similar to H, had a significant influence on the execution of the alcohol transport, and without T, such a method of transport could not have existed.
 
Within the smuggling organization, T took full responsibility for finding suitable suppliers for the ordered quantity of alcohol, carrying out the purchase including price negotiations, making the final direct payment, and contributing to determining the timing of the alcohol transport.
 
For further details, please refer to the original article below:
 
Original article:
Tax Finance News
https://www.tfmedia.co.kr/news/article.html?no=193100