Can a "purchaser in Canada" as that term is defined for customs purposes in Canada undergo changes and no longer satisfy the criteria in the Value for Duty Regulations? Yes
Subsection 48(1) of the Customs Act (Canada) establishes the following three conditions that must be met before the transaction value can be used to appraise the value for duty:
● there must be a sale for export;
● there must be a purchaser in Canada; and
● the price paid or payable must be ascertainable
Subsection 45(1) of the Customs Act states that the definition of "purchaser in Canada" has the meaning assigned by the Regulations. The Value for Duty Regulations defines "purchaser in Canada" as follows:
(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.
The Canada Border Services Agency (CBSA) sets out its administrative position in D-Memo 13-1-3 "Customs Valuation: Purchaser in Canada Regulations". The D-Memo sets out factors that must be satisfied to meet the definition of "purchaser in Canada".
One of the tests relate to residency. Is it possible to be a "resident" for the purposes of the Value for Duty Regulations in one year and not in another? Yes. For example, a corporation may be considered to carry on business in Canada and have its management and control in Canada at one point in time and not satisfy that test after a reorganization. The majority of the partners of a partnership may be Canadian at one point in time and the majority of the partners may not be Canadians at another point in time (e.g., there has been a transfer of partnership interests).
Another test relates to having a "permanent establishment" in Canada. Is it possible to be have a "permanent establishment" for the purposes of the Value for Duty Regulations in one year and not in another? Yes. An importer can close its Canadian operations and sell to Canada from a foreign location.
We have learned from the recent economic turmoil that nothing in business stays the same. Important changes to the facts can occur and there may be legal consequences. It might be a good time to revisit prior determinations as to whether an importer meets the test of "purchaser in Canada" We can help. Cyndee Todgham Cherniak is a Canadian customs lawyer and can be reached at 410-307-4168.