Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



Canada Border Services Agency Released New D-Memo on "Purchaser in Canada"

On July 8, 2009, the Canada Border Services Agency released a revised D-Memorandum D-13-1-3 entitled "Customs Valuation: Purchaser in Canada Regulations (Customs Act, Section 48)". This memorandum explains the CBSA's interpretation and application of the phrase “sold for export to Canada to a "purchaser in Canada” when appraising the value of imported goods under the provisions of section 48 of the Customs Act, the transaction value method. This has been a subject of many cases and contention over the last 10 years. To read a copy of the D-Memo, please go to the following link - http://www.cbsa.gc.ca/publications/dm-md/d13/d13-1-3-eng.pdf

The value for duty of goods is the transaction value of the goods if the goods are sold for export to Canada to a purchaser in Canada and the price paid or payable for the goods can be determined. The term "purchaser in Canada" means:

(a) a resident;

(b) a person who is not a resident but who has a permanent establishment in Canada; or

(c) a person who neither is a resident nor has a permanent establishment in Canada, and who imports the goods, for which the value for duty is being determined,

(i) for consumption, use or enjoyment by the person in Canada, but not for sale, or

(ii) for sale by the person in Canada, if, before the purchase of the goods, the person has not entered into an agreement to sell the goods to a resident.

Where the importer is not a purchaser in Canada, the CBSA will use another method for determining the value for duty. Often the value for duty is higher when the CBSA uses another method.

One of the normal situations where importers are often not considered by the CBSA to be a "purchaser in Canada" is when management and control rests in a foreign entity. For example, a non-Canadian company sets up a business in Canada, but all decisions are made from the head office outside Canada. See paragraphs 10 and 11 of the D-Memo for more details concerning the CBSA's administrative position. Counsel continue to have disagreements with the CBSA's administrative position --- which requires strategic planning for cross-border transactions.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168.

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