Exclusions from the customs value: buying commission
The term ‘buying commission’ means fees paid by an importer to his agent for the service of representing him in the purchase of the goods being valued (Article 32.4 of the Code refers).
Commissions are payments made to intermediaries for their participation in the conclusion of a contract of sale.
In certain transactions a buying agent concludes the contract and re-invoices the importer, distinguishing between the price of the goods and the fees. The mere fact of re-invoicing does not make the agent the seller of the goods, nor can the fees be considered as part of the price of the goods. Providing ‘buying commissions’ are shown separately from the price of the goods on the documentation accompanying the import entry or in the trading accounts of the importer, they are excludible from the customs value (CVS Conclusion 14 also refers).
Retrospective claims to exclude buying commissions that were not distinguished at the time of entry to free circulation can be considered on a case by case basis and should be reported to the Valuation Unit of Expertise. See also paragraph 11.3, ECJ C-468/03 (Overland Footwear Ltd).
The agent or intermediary is a person who buys and sells goods, possibly in his own name but always for the account of a principal. If commission is shown on the agents invoice, it is necessary to check whether the agent is acting for the buyer or the seller of the goods (see also WCO EN2.1, Comm 17.1 and ECJ cases 11/89 and 299/90).