“the non-transferable exclusive right and license (subject to [certain existing rights] and otherwise as hereinafter provided) to use the Licensed Mark in the Territory solely in connection with the manufacture, marketing, distribution and sale of seasonal Products approved by the Licensor (‘Articles’).”
“No Distributor (including Como) may be engaged unless the Distribution Agreement has been fully executed and delivered to, and approved by, Licensor, and the Licensor’s consent to the engagement of the Distributor on the terms set forth in the Distribution Agreement has been executed and delivered to the Licensee, and, where applicable, Como (such approval and consent not to be unreasonably withheld).”
“each Distribution Agreement shall require the Distributor to comply in its activities as a distributor with, and be bound by, all of the provisions of the Agreement applicable to Licensee. Further, Licensee shall work together with each of the Distributors to ensure that these Articles are advertised, marketed, promoted, distributed and sold in a manner that is co-ordinated and consistent with the manner in which the same articles are advertised, marketed, promoted, distributed and sold by Licensee. Also, Licensee shall ensure that the Distributors act in accordance with the terms and conditions of this Agreement.”
“the Licensee, either itself or through Como…may develop and operate up to an aggregate of six Outlets during the initial term of this Agreement.”
“shall be responsible for designing and developing the seasonal collections of Articles, making all prototype and other samples and overseeing all aspects of the production of Articles and the Licensee shall bear all costs thereof.”
“After Licensor finally approves an entire seasonal collection of Articles…Licensee shall diligently proceed with the completion of the development of and with the commercial production of such collection and shall show, offer for sale, sell and ship such collection in a timely manner in accordance with industry standards.”
“make expenditures for advertising activities…and for marketing activities…during each Annual Period in amounts appropriate to drive the Business and maximise the sales of Articles and consistent with the approved Business and Marketing Plan commencing with such Annual Period.”
“(a) The Company is engaged in the retail boutique operations and wholesale distribution of products bearing the licensed mark DKNY Jeans (the Articles) in Europe/United Kingdom/Middle East countries. (b) subject to the terms of this Agreement, the Company desires to formalise in writing the existing appointment of the Agent as its buying agent to arrange for and oversee various aspects of the manufacture of the Articles with an international sourcing base of third party Factories including Factories to be located in, but not limited to, Asia and the Agent and [sic] desires to obtain and continue such appointment.”
“ Agency Subject to and pursuant to the terms in this Agreement the Company hereby appoints the Agent, and the Agent hereby accepts such appointment, to act as a buying agent for the Company.”
“but in its sole capacity as the company’s buying agent. As such the Agent will receive FOB invoices for the Articles from the manufacturer and will raise corresponding CIF invoices to the Agent [sic] which will match the manufacturer’s FOB price but with the addition, as appropriate, of insurance and freight.” (10) Arranging for shipment or routing of all Articles. (11) Assisting the company “in co-ordinating with Factories on all financial business aspects including payment, establishing letters of credit etc with the Factories” and that in providing this assistance, CID will operate “solely as a representative and liaise to the best of their ability as an agent and to protect the best interest for and on behalf of the company.”
“As compensation for all the services rendered by the Agent pursuant to this Agreement, the Agent shall receive…14% of the FOB factory price in US dollars of the Articles shipped for or on behalf of the Company by the Factories arranged by the Agent.”
“5.1 The Agent will not seek to reimburse from the Company expenses incurred to fulfil its duties which are required by Clause 3 of this Agreement, such as: (a) office rental… (f) All travel expenses incurred by the Agent in travel to any country…for the avoidance of doubt, the Agent shall seek the Company’s approval on the reasonable travel expenses…for each trip other than Hong Kong, China and Macau prior to trip commencement, notwithstanding trips specifically requested by the Company. Determination of the reasonableness of all expenses shall be within the sole discretion of the Company.. 5.2 Any other expenses incurred by the Agent in furtherance of the Agreement shall be reimbursed by the Company only if such expenses submitted and approved by the Company before they were incurred by the Agent.”
“This Agreement constitutes the complete understanding between the parties with respect to the subject matter hereof, supersedes all prior oral and written understanding and agreements relating thereto…no party is acting on reliance [sic] upon any representation of guaranteed of the other, aside from those explicitly provided for in the Agreement.”
“nothing in this Agreement shall constitute a partnership or establish a relationship of principal and agent or any other relationship of a similar nature between or among any of the Parties.”
“the Company wishes to formalise in writing the existing appointment of the Service Provider for the performance of certain marketing, merchandising, and administrative tasks and other services relating to the DKNY JEANS retail and wholesale distribution business in Europe. United Kingdom and Middle East (‘the DKNY JEANS Business’) as more particularly described in 1.1 hereto (‘the Services’) to enable it to carry on its business at the highest levels of efficiency and competitiveness.”
“…notwithstanding anything contained herein to the contrary, it is hereby expressly agreed that: (i) … (ii) the parties expressly acknowledge and agree that the Service Provider shall act only as an independent contractor in providing the Services to the company. The Service Provider shall not be entitled to hold itself out as an agent or representative of the company.”
“The Technical Committee was set up by Article 18 of the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade, signed at Geneva on12 April 1979 and approved by the Decision of the Council of the European Communities of10 December 1979 concerning the conclusion of the Multilateral Agreements resulting from the 1973 to 1979 trade negotiations (Official Journal 1980 L 71, p. 1). The Technical Committee on Customs Valuation is placed under the auspices of the Customs Cooperation Council and includes representatives of all the countries which are parties to the abovementioned Geneva Agreement. Pursuant to Annex II to that agreement the Technical Committee was established ‘with a view, at the technical level, towards uniformity in interpretation and application’ of the agreement. Its opinions, which may take various forms including explanatory notes, are adopted by a majority of at least two thirds of the members present. Even if the opinions are only of an advisory nature, nevertheless they represent the opinion of the experts of the majority of countries engaged in world trade. If the Community were to adopt an interpretation contrary to such an opinion, it would risk creating quite considerable problems and the Community should do so only for very serious reasons.”
“The customs value of imported goods shall be the transaction value, that is, the price actually paid or payable for the goods when sold for export to the customs territory of the Community, adjusted, where necessary, in accordance with Articles 3 2 and 33.”
“the total payment made or to be made by the buyer to or for the benefit of the seller for the imported goods and includes all payments made or to be made as a condition of sale of the imported goods by the buyer to the seller or by the buyer to a third party to satisfy an obligation of the seller…”
“In determining the customs value under Article 29, there shall be added to the price actually paid or payable for the imported goods: (a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods: (i) commissions and brokerage, except buying commissions…”
“In determining the customs value under the provisions of Article 1, there shall be added to the price actually paid or payable for the imported goods (a) the following, to the extent that they are incurred by the buyer but are not included in the price actually paid or payable for the goods: … (i) commissions and brokerage, except buying commissions…”
“Activities, including marketing activities, undertaken by the buyer on his own account, other than those for which an adjustment is provided in Article 32, are not considered to be an indirect payment to the seller, even though they might be regarded as of benefit to the seller or have been undertaken by agreement with the seller, and their cost shall not be added to the price actually paid or payable in determining the customs value of imported goods.”
“a person who buys or sells goods possibly in his own name, but always for the account of a principal. He participates in the conclusion of a contract of sale, representing either the seller or the buyer.”
“A buying agent is a person who acts for the account of a buyer, rendering him services in connection with finding suppliers, informing the seller of the desires of the importer, collecting samples, inspecting goods and, in some cases, arranging the insurance, transport, storage and delivery of the goods.”
“Sometimes, the contracts or documents do not clearly represent or reflect the nature of the activities of the so-called agent. In such circumstances, it is essential that the actual facts of the case be determined and various factors, as explained below, be examined.”
“10. One of the questions which could be the subject of an enquiry is whether the so-called buying agent assumes any risk or performs additional services other than those which are indicated in para 9 of Capital Explanatory Note 2.1 and would normally be carried out by a buying agent. The extent of these additional services could affect the treatment of the buying commission. An example could be where the agent uses his own funds for the payment of the imported goods. This opens the possibility of the so-called buying agent sustaining a loss or gaining a profit arising from ownership of the goods rather than receiving an agreed fee from acting as a buying agent. In this situation, the totality of the circumstances which apparently establishes a buying agency arrangement may be examined. 11. The result of this enquiry could indicate that the agent is acting on his own account and/or that he has proprietary interest in the goods… 12. Another factor to be examined is the relationship, within the meaning of art 15.4, of the parties involved in the transaction. For instance, the relationship of the agent with the seller or with the person related to the seller has a bearing on the ability of the alleged agent to represent the buyer's interest. Despite the existence of an agency contract, the Customs is entitled to examine the totality of the circumstances to determine whether the so-called agent is in fact acting on behalf of the buyer and not on the account of the seller or even on his own account.”
“[40] In law, that question must be answered by reference to Article 11(A)(3)(c) of the Sixth Directive, that is to say, the Community law notion of acting in the name and for the account of another and not by reference to civil law provisions concerning agency and mandate which vary from one legal system to another. [41] Moreover, the operation must be categorised by reference to objective criteria and not solely to contractual provisions agreed between the dealer and the purchaser. Otherwise the parties could determine which elements are included in the taxable amount.”
“[26] It was held in Imballaggi that if a person bought or sold as principal he was outside the scope of the Regulations because he was acting on his own behalf, not on behalf of another. The Court of Appeal found that the words ‘on behalf of’ fell to be interpreted to mean what an English court would naturally construe them as meaning. The Court of Appeal in Chuan Soon Huat appears to have proceeded on the same basis. In the present case the tribunal did not expressly analyse how the Customs Code should be interpreted. Nevertheless it is to be inferred from its reasons that the tribunal believed that the expressions used in the definition of ‘buying commission’ in art 32(4) must be ascribed their natural meaning as understood by an English court, bearing the Explanatory Note and Commentary in mind. I find that was the correct approach.”
“[52] If the revision indicates that the provisions governing the customs procedure in question were applied on the basis of incorrect or incomplete information, the customs authorities must, in accordance with Article 78(3) of the Customs Code, take the measures necessary to regularise the situation, taking account of the new information available to them. [53] Where it finally becomes apparent that the import duties paid by the declarant exceed those that were legally owed at the time of their payment, the measure necessary to regularise the situation can consist only in reimbursement of the overpaid amount. [54] That reimbursement is made in accordance with Article 236 of the Customs Code if the conditions laid down by that provision are fulfilled, in particular that there has been no manipulation by the declarant and that the application for reimbursement has been submitted within the time-limit, which is in principle three years.”
“[67] Moreover, the fact that, as a matter of form, a customs declaration does not contain separate reference to a buying commission, which is nevertheless distinct from the price of the goods, can only mean that that commission is validly regarded as dutiable and that, consequently, import duties applied to it are legally owed. [68] That fact, where there is a possibility of subsequently revising a customs declaration at the declarant's request, cannot have as its consequence that duties legally charged by reason of simple rules of evidence are subsequently assimilated to duties legally owed within the meaning of Article 236(1) of the Customs Code, despite the production of sufficient evidence… [71] where [HMRC] find…that the declared customs value erroneously included a buying commission, they are required to regularise the situation by reimbursing the import duties applied to that commission.”
“if the following year the cost base goes down then the percentage could increase or decrease; the [BASS] agreement allows it to be less. The 14% is not cast in stone; we compare to actuals [and] we will be credited for any up or down movements in costs.”
“[42] As regards in particular the importance of contractual terms in categorising a transaction as a taxable transaction, it is necessary to bear in mind the case law of the court according to which consideration of economic and commercial realities is a fundamental criterion for the application of the common system of VAT… [43] Given that the contractual position normally reflects the economic and commercial reality of the transactions and in order to satisfy the requirements of legal certainty, the relevant contractual terms constitute a factor to be taken into consideration when the supplier and the recipient in a ‘supply of services’ transaction within the meaning of articles 2(1) and 6(1) of the Sixth Directive have to be identified. [44] It may, however, become apparent that, sometimes, certain contractual terms do not wholly reflect the economic and commercial reality of the transactions. [45] That is the case in particular if it becomes apparent that those contractual terms constitute a purely artificial arrangement which does not correspond with the economic and commercial reality of the transactions.”
“Where the question at issue involves more than one contractual arrangement between different parties, this court has emphasised that, when assessing the issue of who supplies what services to whom for VAT purposes, "regard must be had to all the circumstances in which the transaction or combination of transactions takes place" - per Lord Reed in Revenue and Customs Commissioners v Aimia Coalition Loyalty UK Ltd[2013] UKSC 15 ,[2013] 2 All ER 719 , para 38,[2013] STC 784 . As he went on to explain, this requires the whole of the relationships between the various parties being considered.”
“[31] Where parties have entered into a written agreement which appears on its face to be intended to govern the relationship between them, then, in order to determine the legal and commercial nature of that relationship, it is necessary to interpret the agreement in order to identify the parties' respective rights and obligations, unless it is established that it constitutes a sham. [32] When interpreting an agreement, the court must have regard to the words used, to the provisions of the agreement as whole, to the surrounding circumstances in so far as they were known to both parties, and to commercial common sense. When deciding on the categorisation of a relationship governed by a written agreement, the label or labels which the parties have used to describe their relationship cannot be conclusive, and may often be of little weight…”
“do not clearly represent or reflect the nature of the activities of the so-called agent. In such circumstances, it is essential that the actual facts of the case be determined…”
“ Despite the existence of an agency contract , the Customs is entitled to examine the totality of the circumstances to determine whether the so-called agent is in fact acting on behalf of the buyer and not on the account of the seller or even on his own account.”
“[17] As a preliminary point, it should be borne in mind that the Island of Jersey is an integral part of the Community customs territory but constitutes a third territory as regards the rules established by the Sixth Directive. Consequently, the supply of goods by a company established in Jersey to a customer resident in the United Kingdom constitutes an importation within the meaning of Article 2(2) of the Sixth Directive. The taxable amount is thus defined by Article 11B(1) of that directive as ‘the value for customs purposes, determined’ in accordance with Article 29 of the Customs Code. [18] Accordingly, the questions referred by the national court must be answered solely by reference to Article 29 of the Customs Code… [21] For the reasons set out in paragraph 17 of this judgment, that judgment [ie CPP ], and in particular paragraph 27 thereof, which relates to the scope of a transaction subject to VAT within a Member State, cannot be interpreted as giving guidance capable of being used directly in applying the provisions of Article 29 of the Customs Code.”
“This Agreement constitutes the complete understanding between the parties with respect to the subject matter hereof, supersedes all prior oral and written understanding and agreements relating thereto.”
“all Distribution Agreements and the obligations of the distributors thereunder shall be consistent in all material respects with the terms of this agreement...each Distribution Agreement shall require the Distributor to comply in its activities as a distributor with, and be bound by, all of the provisions of the Agreement applicable to Licensee…Licensee shall ensure that the Distributors act in accordance with the terms and conditions of this Agreement.”
“Another factor to be examined is the relationship, within the meaning of art 15.4 of the parties involved in the transaction. For instance, the relationship of the agent with the seller or with the person related to the seller has a bearing on the ability of the alleged agent to represent the buyer's interest. Despite the existence of an agency contract, the Customs is entitled to examine the totality of the circumstances to determine whether the so-called agent is in fact acting on behalf of the buyer and not on the account of the seller or even on his own account.”
“[132] There is, in our view, a divergence in approach revealed by these authorities where the language of the contractual provision is unambiguous and results in an improbable or odd commercial result. Lord Hoffmann in the Investors Compensation Scheme case considers that if ‘something has gone wrong with the language’ a court need not construe contractual language in a way which attributes to the parties an intention they could not have had. On the other hand, in Rainy Sky Lord Clarke considers that unambiguous language must be applied even if it leads to a most improbable commercial result. [133] In our view, where contractual language is unambiguous, even though it leads to a strange or improbable result, that language can only be changed in an action for rectification. If it were otherwise it would effectively mean that that there was little or no scope for rectification. This would go beyond the authorities: see Lord Hoffman in Investors Compensation Scheme (para 128 above, point 3) and Lord Neuberger in Rainy Sky (para 129 above at [19]). In our judgment, to construe unambiguous language in a way which cannot be supported by the meaning of the words goes beyond the construction of a contract and involves re-writing its provisions.”
“it is necessary above all to establish what was the real function of the agent. If he acted solely on behalf of the buyer he participated in the conclusion of the contract of sale by representing the buyer and the contract is concluded in substance between the manufacturer/supplier.”
“considered all the material, not only the documents but also the evidence of many witnesses, and has concluded both that the 1985, 1989 and 1994 agreements authorised MIG to negotiate and conclude contracts in CSH's name and on its behalf and that the contracts and confirmations of contract used consistently throughout the period of over twenty years in question reflected the agency relationship which had been originally defined in the 1985 agreement [between the parties].”
“CID is a shell company [which] acts as a conduit for sourcing suppliers, arranging for the manufacture of the jeans and shipping them to its subsidiary companies [2] for worldwide distribution. Under the arrangements in place it therefore both buys and sells the jeans although it acts purely as an agent in the purchasing and sale of the jeans.”
“The flaw in the [Upper Tribunal’s] reasoning is that it confuses the making of a contract with the power to perform it. There is no legal impediment to my contracting to sell you Buckingham Palace. If (inevitably) I fail to honour my contract then I can be sued for damages.”
“I apprehend that, if it [ie the concept of sham] has any meaning in law, it means acts done or documents executed by the parties to the ‘sham’ which are intended by them to give to third parties or to the court the appearance of creating between the parties legal rights and obligations different from the actual legal rights and obligations (if any) which the parties intend to create. But one thing, I think, is clear in legal principle, morality and the authorities…that for acts or documents to be a ‘sham’, with whatever legal consequences follow from this, all the parties thereto must have a common intention that the acts or documents are not to create the legal rights and obligations which they give the appearance of creating.”
“Activities, including marketing activities, undertaken by the buyer on his own account, other than those for which an adjustment is provided in Article 32, are not considered to be an indirect payment to the seller, even though they might be regarded as of benefit to the seller or have been undertaken by agreement with the seller, and their cost shall not be added to the price actually paid or payable in determining the customs value of imported goods.”
“Article 29 is plainly intended to provide a straightforward and easily applicable method of ascertaining the customs value in a wide variety of cases. It will avoid wherever possible the need for complex or detailed investigations by the importer or the customs authorities.” (5) Finally, there is no parallel with buying commission, so Mr Brown was wrong to seek to extend the ratio of Overland to these other costs. All that Overland decided was that if an importer had genuinely paid buying commission which was then accidentally included in the invoiced amount, HMRC had to allow that error to be corrected. The same analysis could not be extended to these other costs, because there is no provision similar to the Article 32(1)(i) exception for buying commission. As Vos LJ said in Asda at [24]: “The regime expressly provides for additions that must be made to the price, ascertained under art 29, in art 32 of the Code, and for deductions of certain separately itemised charges in art 33 of the Code. It is now common ground that the rebate does not fall within any of the categories of additions or deductions contained in these articles of the Code…In my judgment, the very specificity of arts 32 and 33 make it clear that other deductions are not to be made, when considering 'the price paid or payable', in order to ascertain the transaction value under art 29 of the Code.”