Finding a factory, negotiating the price and organising a purchase can be entrusted to an intermediary. Its remuneration becomes a separate expense for the buyer. Will duty be charged on it? The answer depends on whose interests the intermediary represented and what it did under the agreement.
A fee paid to an agent who represented the buyer outside the Eurasian Economic Union (EAEU) when purchasing imported goods is called a buying commission. It is excluded from the additions to the price. For other intermediary remuneration, subparagraph (a) of subparagraph 1 of paragraph 1 of Article 40 of the EAEU Customs Code sets the general rule: it is added if the cost is borne by the buyer and has not already been included in the price of the goods. This article concerns commercial imports.
For example, a factory sells goods for EUR 100,000 and an intermediary receives another EUR 5,000. That EUR 5,000 may be a fee paid to the buyer's agent, remuneration for the seller's representative, or part of the price where the intermediary itself resells the goods. The calculation will differ even though the importer incurs the same total expense.
| Buying agent | Represents the buyer in purchasing abroad |
|---|---|
| Reseller | Buys and resells the goods |
The name of the agreement - 'agency', 'commission' or 'services' - therefore does not determine the result in advance. It is necessary to examine what the intermediary did in the specific purchase, for whose account it acted and whose interests it represented.
A buying agent acts for the buyer. It may find factories, transmit technical specifications, obtain samples, conduct negotiations, place orders and agree terms on the importer's instructions. Its foreign registration confirms where the company is located, but does not by itself show its function in the transaction.
The Regulation approved by Decision No. 112 of the Board of the Eurasian Economic Commission (EEC) dated 15 July 2014 requires the intermediary's actual functions to be assessed. Under paragraphs 3, 4 and 9, an agent may act in its own name but for the account of the person that gave the instructions. Its signature on the contract with the factory therefore does not by itself mean that it is acting as an independent seller.
It is useful to reconstruct the course of the specific order. Who determined the product specifications? Who selected the factory from the options offered? Who agreed the price, quantity and shipment date? If the importer made those decisions and the intermediary carried out its instructions, the agreement and correspondence help substantiate the buying function.
A combined invoice is also possible. The intermediary may state the factory price and its own fee in one document. Paragraphs 3 and 9 of Regulation No. 112 allow such an arrangement to be assessed according to the parties' actual relationship. A combined invoice does not automatically mean that the intermediary bought the goods and then resold them.
The factory invoice helps establish the true seller's price before the agency fee. Under paragraph 9 of Regulation No. 112, the absence of seller invoices may indicate a resale. This is one possible indicator to be assessed together with the other purchase terms and the intermediary's actions.
The transaction looks completely different if the intermediary itself buys the goods from the factory, assumes commercial risk, sets its own price and then sells the goods to the Russian company. For the Russian buyer, it is then the seller under its transaction. The difference between the factory price and that intermediary's own resale price cannot be removed from customs value by calling it a buying commission.
Under paragraph 3 of Article 39 of the EAEU Customs Code, the transaction price covers payments for the imported goods made to the seller or to another person for the seller's benefit. The number of invoices and bank transfers is therefore secondary: what matters is whether the buyer is paying for the goods or for a separate intermediary service.
There is also a selling agent. It acts in the interests of the other party to the transaction - for example, by finding buyers or helping the seller conclude the contract. If its remuneration is already included in the price of the goods, it cannot be added again. If the buyer pays that remuneration separately in addition to the price of the goods, the amount is included in customs value. This situation is described in paragraph 12 of Regulation No. 112.
One intermediary invoice may combine different costs. For example, a fee for finding a factory, packaging costs, transport and inspection of the finished consignment. They cannot all be treated as one item merely because the intermediary called the whole invoice 'agency services'.
A buying commission may fall within the Article 40 exclusion. Packaging and transport are checked under their own grounds in that Article. Inspection also requires a separate assessment.
In Example 1 of the Rules for applying Method 1, approved by Decision No. 283 of the Board of the EEC, the buyer of equipment that had already been purchased separately engaged an independent expert. The inspection was not required by the terms of sale, did not alter the condition of the equipment, did not relate to its production and did not affect the seller's price. In those specific circumstances, the expert's costs were not included in customs value.
This example is limited to the stated circumstances. It does not support a conclusion that every inspection, quality check or intermediary service is always outside customs value.
Return to the hypothetical figures. The factory price is EUR 100,000. The buyer's substantiated buying-agent commission is EUR 5,000. The buyer also separately pays EUR 4,000 for transport to the place of arrival in the EAEU and EUR 1,000 for packaging. Assume that the EUR 5,000 genuinely meets the conditions for a buying commission, that transport and packaging have not yet been included in the price, that there are no other additions, and that the conditions of Method 1 are met.
In that hypothetical example, customs value is EUR 105,000: 100,000 + 4,000 + 1,000. The EUR 5,000 paid to the buying agent is not added.
Now suppose the same EUR 5,000 is received by the seller's agent and the buyer pays it in addition to the factory price. With all other assumptions unchanged, customs value is EUR 110,000: 100,000 + 5,000 + 4,000 + 1,000.
Third scenario: the intermediary itself sells the goods to the Russian company for EUR 105,000. Its price is already the price of that transaction. If EUR 4,000 for transport and EUR 1,000 for packaging are paid in addition, the result is again EUR 110,000.
The same figure of EUR 110,000 is reached, but the calculations work differently. In the selling-agent scenario, separate intermediary remuneration was added to the price of the goods. In the resale scenario, EUR 105,000 was already the price of the goods in the Russian buyer's transaction. The intermediary's role and the nature of the payment therefore have to be identified before the figures are inserted into the calculation.
If an includible commission relates to several items, Decision No. 83 of the Board of the EEC dated 22 May 2018, as amended on 2 December 2024 provides for it to be allocated in proportion to the value of the relevant goods.
A substantiated buying commission that falls within the Article 40 exclusion does not become an additional amount on that basis. There is no reason to allocate it among the goods merely because the agent participated in the entire consignment.
The agreement defines the content of the instructions and the remuneration, while correspondence shows who selected the factory and agreed the purchase. The agent's report links the instructions to the actions performed and the expenses incurred. The factory invoice confirms the seller's starting price.
If the only document is an acceptance certificate stating that 'services have been fully provided', it shows that the customer accepted the service but does not disclose its content. Where one total amount covers several activities, a breakdown is useful: what part relates to buying representation, transport, packaging, inspection of the goods or other expenses.
At the same time, the absence of a separate document that customs would find convenient to see is not in itself an independent ground for rejecting Method 1. Under paragraph 3 of Article 40, the problem arises when a required additional amount cannot be determined on the basis of reliable, quantifiable and documentary evidence.
The terms concerning the agent's report and confirmation of the factory price are best agreed with the intermediary before the purchase. They help explain what the payment represents: buying representation, remuneration for a selling agent or the price of an independent resale. It is the intermediary's role that determines how the amount is treated in customs value.
Andrey Bernev, customs lawyer