Current trends and outlook
This case further adds to the negative trend for companies involved in international trade in the contesting of customs authorities' decisions requiring royalties for the right to use know-how in the manufacture of finished products in Russia to be included in the customs value of imported raw materials and components.
It is interesting to note in this instance that, despite the detailed examination of the structure of supplies and the conduct of manufacturing operations, the court did not address the fact that the importer/licensee, while being a party to the licensing agreement, was not the direct purchaser of the components or the manufacturer of the finished products.
The court pays greater attention to analysing the formal provisions of agreements than the actual circumstances of the transactions, which highlights the importance of making a thorough review of the provisions of licensing and foreign trade agreements to identify provisions that might affect the assessment of whether the conditions for the inclusion of royalties in the customs value of imported goods are met.
Another interesting feature of the case is the court’s approach to the question of whether withholding VAT payable by the importer (licensee) on royalties should be included in the customs value.
The question of whether amounts of withholding VAT should be included in the customs value of imported goods as part of royalties remains open. Case law on this issue is continuing to evolve and a definitive approach has yet to be established.
In view of this fact, we advise companies to act pre-emptively and make a thorough review of customs risks associated with the inclusion of royalties and taxes thereon in the customs value of imported goods.