The calculation and verification of tax evasion in the case of smuggling of ordinary goods is calculated based on the corresponding tax rate applicable to the tax payment of the goods involved**. In some cases, in addition to paying the seller for the goods in question**, the buyer also needs to pay commissions and other expenses. Whether the above-mentioned expenses are included in tax payment** directly affects the calculation and verification of tax evasion, and is extremely controversial in judicial practice.
Based on cases, this article briefly sorts out how to identify and declare the "purchase commission" that is not included in the tax payment**.
1. The legal provisions on whether the "purchase commission" is included in the tax payment**
Customs laws and regulations have a clear definition and regulation of "purchase commission". In the supplementary provisions, the Measures for Customs to Verify the Duty Payment of Imported and Exported Goods defines "purchase commission" as "refers to the labor costs paid by the buyer to its own purchaser for the purchase of imported goods". Paragraph 1 of Article 11 stipulates that: "When examining and determining the duty-paid ** of imported goods on the basis of the transaction**, the following expenses or values that are not included in the actual payment or payable ** of the goods shall be included in the duty-paid**: 1) the following expenses borne by the buyer: 1. Commissions and brokerage fees other than the purchase commission". Paragraph 1 of Article 19 of the Regulations on Import and Export Tariffs also stipulates that "the following expenses for imported goods shall be included in the dutiable **: commissions and brokerage fees other than the purchase commission borne by the buyer".
According to the above provisions, the duty-paid ** of imported goods shall be examined and determined on the basis of the transaction**, but the commissions and brokerage fees borne by the buyer and not included in the actual payment and payable of the goods, except for the "purchase commission", shall be included in the tax paid**. According to the context, the commission and brokerage fee borne by the buyer and not included in the actual payment and payable of the goods shall be included in the tax paid**; However, the "purchase commission" should not be included in the tax paid**.
2. How to determine the "purchase commission" in practice
As mentioned earlier, the buyer's "purchase commission" is not dutiable**, while other commissions and brokerage fees are dutiable**. In judicial practice, which commissions belong to the "purchase commission" has become the key. In the author's opinion, the accurate determination of whether it is a "purchase commission" that is not included in the tax payment** should be comprehensively considered in combination with the following five factors.
The first is to grasp the definition of "purchase commission" in essence. The "labor cost" paid by the buyer to its own purchaser for the purchase of imported goods is the "purchase commission" and is not included in the tax payment**. The "purchase price" and "cost" actually paid by the buyer to the overseas seller for the import of goods, even if the buyer and the seller agree on it as a "purchase commission", are not "purchase commissions" in the sense of the Customs Law, and should be included in the tax payment**.
For example, in the 2016 Min 02 Xingchu No. 85 case, the evidence in the case proved that the defendant paid commissions to foreign suppliers at a rate ranging from RMB 2 to 5 per box, and transferred the commissions to the domestic bank account designated by Huang. The above-mentioned "purchase commission" refers to the "cost" actually paid by the buyer and the defendant to the overseas seller for the import of goods, and shall be included in the total amount of duty-paid ** for examination and approval in accordance with the provisions of the Regulations on Import and Export Tariffs.
For example, in the 2016 Jin Xing Zhong No. 96 case, the evidence in the case proved that the appellate unit's direct transaction partner was the foreign businessman in this case, and the so-called "commission" paid to the foreign businessman was the price increase, which was part of the car price, and should be truthfully declared to the customs and included in the tax payment**, rather than the "purchase commission" stipulated in the tariff regulations.
The second is whether the payment channel of "purchase commission" is formal and legal. The "purchase commission" involves overseas, and its payment channel involves the national foreign exchange policy, and whether the payment is made through legal and compliant channels is also one of the important factors to consider.
For example, in the 2016 Hu Xing Zhong No. 82 case, the contracts and invoices used by the defendant were provided by overseas companies, and the ** on the invoices did not include commissions, and the difference between the actual purchase price of imported vehicles and the amount of the letter of credit was paid overseas through others in the name of "education and training expenses" or "education". The trial court held that the defendant's ** process did not comply with the relevant regulations, and the payment of the difference did not pass the examination and approval of the foreign exchange administration department and the foreign exchange payment was made through the formal channels of the foreign exchange management department. The actual transaction of the imported automobiles of the defendant unit is very different from the actual application, and the difference is paid abroad through the underground bank, and if it fails to truthfully declare the total amount of ** paid and payable when declaring the import to the customs, it shall be included in the tax payment**.
The third is to consider the proportion of the commission amount to the value of the goods. Commission, as a service fee charged by the intermediary to facilitate cooperation, should be kept in an appropriate proportion to the value of the goods, and the "purchase commission" is no exception. For example, real estate agents, which are common in daily life, charge commissions for facilitating real estate transactions are generally between 1% and 3% of the total amount of the house price, and more than this proportion will appear abnormal, and the commission may also include other fees. When the amount of "purchase commission" accounts for a significant proportion of the value of the goods, it is often not only "the labor costs paid by the buyer to its own purchaser for the purchase of imported goods", but also other expenses.
For example, in the 2015 Hu San Zhong Xing Chu Zi No. 33 case, although the two parties agreed on the ** Procurement Entrustment Contract, the buyer was required to pay Zhu or Li Moumou a ** procurement commission according to the cost of one time of the goods, and combined with other evidence in this case, it can be proved that the above-mentioned commission fees also include proofing design fees, raw materials supplied by customers, auxiliary materials and expenses that must be paid by the buyer in the production process. Therefore, the above-mentioned so-called procurement commission is substantially different from the "purchase commission" claimed by the defense, and should be included in the tax payment**.
Fourth, it is judged from the analysis of the status, role and role of the first person in the transaction. The "own purchaser" determines that the purchaser is employed by or attached to the buyer, and engages in the buyer according to the buyer's instructions, and has no decision on the seller's choice, transaction, specifications, quantity, etc. The role of a person in a transaction is to assist the buyer in carrying out transactional work, and the remuneration received is to receive the buyer's labor fees, rather than an independent trader who earns profits from the trading relationship. Since the cost of the service is not the actual cost of the purchase of the goods, it does not need to be included in the tax paid**.
For example, in the 2016 Liao 02 Xingchu No. 13 case, the foreign supplier purchased a car from a foreign 4S store and then sold it to the defendant, which was to engage in activities for its own interests, and did not meet the characteristics of providing services to the defendant and receiving remuneration.
For example, in the 2019 Lu 02 Xingchu No. 38 case, the evidence in the case proved that the actual procurement cost of the defendant's purchase of the "American-spec car" included the "window paper"** plus document fees, sales tax, license fees, freight fees, storage fees, as well as the handling fees of the purchaser and the handling fees (profits) of the suppliers. Except for the "window paper"** and freight declared by the defendant to the customs, the content and amount of the rest of the expenses are not "purchase commissions", and are also beyond the scope of the so-called "purchase commissions". Automobile suppliers in the United States are independent businessmen with the right to buy and sell independently, rather than purchasers who are employed or attached to the defendant unit, and they purchase automobiles according to the requirements of the defendant unit and sell them to the defendant unit to make a profit, which is a business operation model. Therefore, the defendant and the overseas supplier are not ** relationship, and the supplier does not receive a "purchase commission". The above-mentioned expenses are the overseas procurement costs of the defendant unit, which should be included in the dutiable ** and declared to the customs according to the facts.
Fifth, it is analyzed and judged from whether the first person has rights to the goods and bears relevant risks in the transaction. **In the process of the transaction, the person paid its own funds, obtained the ownership of the goods, assumed the risks and benefits of the goods, and played the role of the seller in the transaction, and the relationship between the two is essentially a relationship between the two, and the relevant fees paid no matter what the title is, do not belong to the "purchase commission" in the sense of customs valuation, and should be included in the tax payment**.
For example, in the 2018 Lu 02 Xingchu No. 118 case, the relevant evidence confirmed that the foreign businessman obtained the car in advance or purchased the car according to the request of the defendant, and there was a bargaining process for the "trade payment", and the level of the "trade payment" mainly depends on the tightness of the vehicle, and there is no necessary relationship with the amount of labor paid by the foreign businessman. The trial court held that the overseas supplier paid its own funds, obtained the ownership of the goods, assumed the risks and benefits of the goods in the course of the transaction, and played the role of the seller in the transaction, and the relationship between the two was essentially that of a buyer and seller, and that the "trade payment" paid by the defendant to the foreign businessman, regardless of its title, did not belong to the "purchase commission" in the sense of customs valuation and should be included in the tax payment**.
3. In the positive supervision, how to declare the "commission" to the customs
If there is a question similar to the commission in the above case, if the enterprise cannot determine whether the commission paid is a "purchase commission" that is not included in the tax payment, according to the Interim Measures for the Administration of Customs Advance Ruling and relevant announcements, the enterprise may submit an application for advance ruling to the customs and tariff functional department directly under the enterprise through the "Internet + Customs" integrated online service platform on whether the commission and other relevant elements should be included in the tax payment** three months before the import declaration of the goods. and provide relevant materials such as contracts (or agreements), invoices, and ** agreements for customs review and qualitative.
For the provisions of Article 19 of the Regulations on Import and Export Tariffs and Article 11 of the Measures for Valuation of Goods, commissions other than the "purchase commission" that should be included in the dutiable** shall not be declared separately if they have been included in the price of goods; If it is not included in the price of the goods, according to the provisions of the Customs Specifications for Filling in the Customs Declaration Form for Import and Export Goods, the enterprise shall declare to the Customs in the "Miscellaneous Expenses" column of the customs declaration form. Since the "purchase commission" is not part of the duty-paid value of imported goods**, enterprises do not need to declare to the customs when declaring.