Gill Nadel, Adv.
As we know, whenthe platform fee is charged according to the value of the goods
(around one percent), calculation of the value is done by the Customs Authority in accordance with the direction of the Customs Code (see paragraph 235(a) to thePort Ordinances, 1971).
Recently, sae ports have begun to track the activities of the Customs Authority regarding the correctionof the value of goods, and when the Customs Authority corrects the value of the goods declared by the importer on the import entry (for example- if the importer did not include in the import entry the purchase commissions that constitute a part of the value of the goods for the purpose of customs duty), the port went to the importer and requested that he pay the difference in platform charges resulting from the value correction.
The very authority of the port to demand payment of the difference in platform fees from theimporter retroactively is unclear, as there is no clause in the Port Ordinances giving the port the authority to issue demands for retroactive payment. This is in contradistinction to the right of the Customs Authority to do so, which is expressly granted in paragraphs 2 and 3 to the Law of Indirect Taxes (Tax Over- or Under- Paid), 1968.
However, beyond that, the ports make life easy for themselves and do not demand the difference in platform fees directly from the importers, but rather refer to the customs agents, and via a bank clearing center arrangement that exists between the customs agents and the port, they collect the difference in fees from the customs agents.
It seems to us that the port does not have the legal authority to demand and/or collect retroactively the port fees owed by importers from logs whose value was corrected from the customs agents via bank clearing center.
Regarding the question of whether it is possible to collect port fees owed in the past via clearing center, the clearing center arrangement between the customs agent and the port is a contractual arrangement that allows use to be made of it according to the conditions listed in it and in accordance with its purpose. The purpose of the clearing center arrangement is to be used for current expenses, and its clear goal is expedition of processes and a quick release of goods. The clearing center arrangement includes no stipulation enabling collection by it of a debt from the past, and this is also not its purpose, at least from the perspective of the mindset of the customs agent.
Regarding the question of whether it is possible to demand from the customs agent retroactive differences of port fees- here, too, we believe that the answer is in the negative.
Regarding payment of port fees, the customs agent is not the agent of the owner of the goods, since payment of port fees does not constitute a legal action that creates a legal responsibility. The customs agent is a pipe for the transfer of funds from the importer/exporter to the port, and a pipe like this is not considered an agent. Prof. Barak, in his book The Laws of Agency, writes that "an action is considered 'a legal action' only if it is intended to create a change in the situation of the principal by creating, changing, or voiding right, duties, immunities, or powers. Therefore, if Reuven requests that Shimon represent him at a funeral or a meal and Shimon does so, the action of Shimon is not legal but material, since no change is created in the legal status of Reuven. Similarly, an insurance agent who fills out an insurance form does not act as the agent of the insurance company nor the insured, since filling out the form (unlike signing the insurance policy) is not a legal activity. A committee investigating a topic on behalf of those who appointed it is not performing a legal action in their name. A lawyer transferring his client's money from a third party to the client is not performing a legal action in the name of the client…a legal action is separate from a material (physical) action, and the Law of Agency does not apply to material actions".
And in our case, the importer does not appoint the customs agent as his agent: The customs agent does not create/change or void a right or duty of the importer and all he is - is a pipe to transfer the port fee monies. We do not know of a case in which the port asks to see a power of attorney document regarding the actions of the customs agent as an agent of the importer/exporter.
Practice also clearly teaches that the customs agent is not considered an agent of the importer/exporter towards the port: he holds no power of attorney, and he signs no declaration or document with legally binding force in the name of the importer. Following the transmission of the log to Customs- the port refers to the customs agent and through the clearing center arrangement with the port- collects the port fees from the customs agent. Indeed, this is a contractual arrangement between the port and customs agent, but this arrangement does not serve or create agency relations between the importer/exporter and the customs agent regarding port fees.
And, in general, even if the customs agent was also responsible for payment of port fees, it would not be conceivable that the customs agent would be the first address for the demand for payment. The port can be expected to refer, first, to the importer with a demand for payment, and only if all alternatives have been exhausted- then it might go back and go after the customs agent. The behavior of the port leads to a Kafkaesque situation in which the customs agent pays port fees owed from the past for a client who hasn't been working with him for some time, and from whom it is difficult to collect money. Is this what the law was looking for? Absurd.
By the way, in a notice to the media issued by the Ashdod Port company at the end of October, the port claimed that "since half of the income of the Ashdod Port company is derived from the mistaken value of cargo (CIF value), declared by the customs agent, superfluous losses are caused to the port company. The customs agents must check the value of the goods that are declared by the importers before presenting them to the Tax Authority." However, it seems that this claim has no basis, since the value of the goods is set, as a rule, by the price appearing on the supplier invoice that is given to the customs agent by the client. The customs agent has no knowledge regarding the veracity of the price appearing on the invoice and has not control over this datum, and any claim regarding an incorrect value appearing on the supplier invoice- should be referred to the importer and not the customs agent. A similar stance, we have been informed, was expressed by the umbrella organization of customs agents and international forwarders.
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