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New Advisory Opinions

New Advisory Opinion 4.18

Royalties and licence fees under Article 8.1(c) of the Agreement (Royalty – Income Tax)

Work on this instrument was completed at the 52nd Session of the Technical Committee, which took place in Brussels from 5 to 19 May 2021.

This Advisory Opinion derives from a technical question submitted by China and depicts a situation in which the royalty payment for the use of a patent is subject to income tax in the country of importation, where the income tax amount is based on a percentage of the total royalty income paid. In other words, in addition to the royalty payment, the licensee pays the royalty income tax on behalf of the licensor to the Tax Authority of the country of importation.

Following analysis of the situation, the Technical Committee concluded that, in accordance with Article 8.1(c) of the Agreement, the payment by the buyer/licensee to the Tax Authority on behalf of the licensor should be regarded as part of the royalty payment, and thus the total gross payment of royalty inclusive of income tax should be added to the Customs value.

Bearing in mind the complex nature of the Customs valuation treatment of royalties and licence fees, each situation comprises an individual set of circumstances calling for detailed analysis in order to determine whether they are to be included in the Customs value.

WCO Trade Tools

This instrument is published in the Customs Valuation Compendium, available on WCO Trade Tools.

New Advisory Opinion 24.1

Valuation treatment of imported goods bearing the buyer’s own trademark

This instrument was finalized at the 52nd Session of the Technical Committee on Customs Valuation, which took place in Brussels from 5 to 19 May 2021.

In this Advisory Opinion deriving from a case submitted by Uruguay, the Technical Committee gave its view on the determination of the Customs value of imported goods bearing the importer’s own trademark when, at the same time, the same goods with another trademark were presented for importation at a different price.

The Technical Committee concluded that the mere fact that a price is different to the prices of goods which are apparently the same but have different trademarks should not be grounds for its rejection under Article 1.

In any event, each transaction should be examined on its own merits; only in the light of that examination will it be possible to determine that Customs value appropriately.

WCO Trade Tools

This instrument is published in the Customs Valuation Compendium, available on WCO Trade Tools.

New Advisory Opinion 4.19

Royalties and licence fees under Article 8.1(c) of the Agreement

The Technical Committee on Customs Valuation adopted this instrument at its 53rd Session, which took place in Brussels from 18 to 20 October 2021.

This instrument, based on a case submitted by Uruguay, presents the Technical Committee’s position with regard to the payment of a single royalty covering both (1) the right to incorporate or use an imported concentrate in the production of finished products and (2) the right to use the seller’s trademark.

Regarding this question, the Technical Committee considered that it would be appropriate to include that single royalty in the Customs value, after verifying that the three conditions imposed under Article 8.1(c) of the Agreement had been fulfilled and relating the payment of the royalty on the soft drink produced to the price actually paid or payable for the imported concentrate used.

This instrument highlights again the complexity of the Customs valuation treatment of royalties and licence fees. Each case must be examined on its own merits to determine whether or not the royalties and licence fees should be included in the Customs value.

WCO Trade Tools

This instrument is published in the Customs Valuation Compendium, available on WCO Trade Tools.