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Customs intermediary, also known as customs broker or customs agent, act as intermediary between importers or exporters and customs authorities. Their primary role is to ensure compliance with customs regulations and facilitate the movement of goods across borders. Depending on the jurisdiction of the customs intermediary, they may be required to hold a license and formal qualifications.
Is there a difference between a customs intermediary and a customs broker? In principle, these terms are used interchangeably and carry the same meaning. However, there may be a subtle difference in the legal interpretation of these words. An intermediary is often perceived as a conveyor of information between their client and a third party, without the ability to legally bind their client. Conversely, a broker or agent can legally bind their principal, usually within specific agreed-upon limits or if they have acted beyond their authority. The type of agency or representation reflects the degree of the agent’s involvement and authority to act.
The legal framework for a customs intermediary or customs agent, along with their powers, is determined by Section 21 of the Taxation (Cross-Border) Trade Act 2018 (TCTA 2018). This is scrutinised by courts in the UK and Common Law countries based on the Common Law of Agency. The TCTA 2018 refers to intermediaries or brokers as customs agents, and the distinction lies in whether the agent acts in the name and on behalf of their client, or in their own name and on behalf of their client. This differentiates between being a direct or indirect representative. In any of the cases, an agent cannot substitute the importer or exporter and acts on their behalf. The law makes this clear to avoid confusion. However, the degree of liability of the agent depends on the type of representation.
When acting as a direct representative, a customs intermediary places their signature in the name of their client on the customs declaration, but the client is deemed to have made it directly. In the situation of indirect representation, the customs intermediary is deemed to be signing for themselves, but on behalf of their client, indirectly binding client to the declaration.
The appointment of a customs intermediary can be express, such as through an appointment letter agreement or email, or through a formal power of attorney. In the UK, HM Revenue and Customs (HMRC) requires customs intermediaries to have an express appointment signed by the named Director or Partner of the appointing business, as listed in Companies House. During their communication with HMRC, customs intermediaries must state the capacity in which they are acting and whether they are a direct or indirect representative. If a customs intermediary does not have an express appointment as a direct representative, the agent may become liable for acting in their own name and on behalf of their client as an indirect representative. This change has implications for the agent. If the agent had an implied appointment by their client, they may have the chance to produce an express appointment to prove they are acting in the capacity specified in the express agreement, which is acceptable to the particular authority. This could be a formal agreement but also a power of attorney. Companies usually use a power of attorney additionally to an express agreement to maintain confidentiality and not to disclose full details of their agreement to a third party.
If you would like to appoint a customs intermediary and are asked by them to sign a formal authority, this is a normal procedure, and customs intermediaries should not act without the permission of their client.
If you would like to view an appointment letter or our terms of engagement explaining how we follow processes when acting as a customs intermediary on behalf of clients, please don’t hesitate to ask.
Why do companies use customs intermediaries?
Advantages:
Using the knowledge and resources of a customs broker lacked internally.
Saving on the cost of software and its development in line with changes in customs regulations.
Ability to expand business quickly with lesser cost.
Having trade compliance checked by an external party.
Disadvantages:
If operations are large, savings are possible if handled directly.
Not developing own staff and internal expertise.
Loss of control and attention in case it’s not followed and audited regularly.
Types of Customs Intermediaries:
There are various types of customs intermediaries, and choosing the right match is important depending on the type and scale of the operation being carried out. These can include:
Freight forwarders.
Express Delivery companies.
Warehouse providers.
Shipping and container lines.
Management consultants.
Independent customs intermediaries.
The services offered by these businesses may overlap, and various companies could offer a variety of services in consultancy or freight services. However, a common requirement for all customs brokers is that they must have software to access the customs declaration system and sometimes a particular location.
Using a type of customs intermediary has its pros and cons. For companies providing large volumes of shipments, the use of a freight forwarder is often the preferred option. Freight companies and fast express operators concentrate on the operational side of moving goods, which is also a primary concern of the transport departments of clients. In this case, a proper scrutiny and audit process for verification becomes very important, as quality may often be sacrificed over quantity.
The cost is another dimension that could be one of the decisive factors. Appointing independent customs intermediaries specialised in customs consultancy could provide good value for money, as it will provide a service from specialists who are focused on the diverse knowledge of the fast-changing scene of customs regulations and processes. These processes are happening on a global scale and require very close monitoring. A team of highly specialised consultants from these businesses could be very useful resources for maintaining an international presence and growth.
Things to Ask When Employing Customs Intermediaries:
There are many types of customs operations, and there are questions to ask potential customs intermediaries when deciding on appointment:
What is the authority or accreditation of the customs intermediary, and in what capacity can the agent act? Is the agent prepared to act as a direct or indirect representative?
Is the intermediary a member of a particular professional organisation with their code of conduct for members?
Does the intermediary need a license, as certain jurisdictions require a customs agent to hold one?
What qualifications does the customs intermediary hold, and what is their expertise in certain areas of Tariff Classification? Are they familiar with tariff classification and the level of knowledge and understanding of the HS Tariff?
What is their qualification and knowledge in the area of customs valuation? Are they familiar with customs law on the valuation of goods and do they understand taxation rules relevant to independent parties and connected parties?
What is their qualification and knowledge in origin rules and knowledge of preferential and non-preferential origin rules and knowledge of particular free trade agreements and their applications in customs declarations?
Which software does the customs intermediary use for submitting customs declarations and what type of clearances do they handle such as express air shipments, road freight shipments, air freight shipments or sea freight shipments? Which inventory systems of locations do they have access to?
Do they provide record keeping as part of the service to retrieve documents during audits and store them safely? How long does it take to provide a requested document and what references are used for retrieving documents?
What are their charges per declaration and per commodity code? Do they charge for the use of a deferment account and if so, when and how often? Are there any other incidental charges?
Does the customs intermediary provide special customs procedures, or only standard ones?
What type of goods do they regularly clear?
If you have any questions about selecting a customs intermediary, please don’t hesitate to use our free international trade consultancy services and book up to one hour for a free meeting.