High level comparison between LRD, Commissionaire and Agent

If the reason of a business model change is to optimize company’s effective tax rate (tax opportunities), minimizing cash tax effect or cost reduction or realize efficiency overall such standardizing business processes, it is important that with regard to managing such change the indirect tax functions is timely involved (design phase) and also ascertains that proper implementation and executing of indirect tax planning has been taken place. That means that indirect tax issues should be addressed up front during the design phase.

Any change has impact on current processes and controls and its effectiveness. Business model change such as centralized operating model result often in an increased number of transactions and indirect tax obligations across many geographies.

Operational changes have a tax consequence due to the change in transactional flows and the change in a company’s assets, functions and risks profile. Important is to ensure that the new operating model is not only implemented correctly from a tax perspective, but also ensures that business processes are tax aligned realizing support of the business in the areas of compliance, finance & accounting, legal IT systems, indirect tax and regulatory matters. That means teaming is a necessity with with various work streams.

In many Asian countries the Commissionaire concept is not known. In several Asian and Latin- American countries centralized ownership of raw materials, work in progress and finished inventory is not possible. In most countries outside Europe having to register for VAT/GST/Consumption Tax will often results in a full taxable presence, including a liability for Corporate Income Tax.

One of the key processes relate to ERP system. A wrong perception in the design phase can lead to substantial tax and commercial risks. It could also impact the company’s reputation as also customers, suppliers, external auditor, senior management, tax authorities could become stakeholders when it goes wrong.

A condition for success of any ERP solution is involvement by the indirect tax department in design phase, teaming with other workstreams.

The change of a business model can create not only VAT risks, but as well commercial risks such as logistics problems in getting goods into a country and delays and hold off of shipments resulting in disruption of daily business. Some root causes: the company forgot to register for VAT or procurement forgot to agree with supplier who was importing the goods.

SAP change: the perception of Plug And Play

For ‘simple’ business models (AB scenario’s) standard SAP functionality works.

However when business models are more complex, standard SAP VAT functionality is insufficient due to the company’s business model, organizational structures and/or VAT requirements. To manage the correct VAT treatment additional features need to be implemented.

In practice, configuration – the amount depends – is needed when companies deal cross border and/or complex business model are set up such as a centralized principal structure with for example “Limited Risk Distributor” or „Commissionaire”. The latter also known as principal-toller-agent model (PTA).

The company’s principal bears – contractually – from a business deal perspective the major risks (business responsibility). Principals are in the main rule still owner of the goods when these are sent to customers. For corporate tax reasons, such principals have their residence in low tax countries.Tollers are manufacturers that produce on behalf of other parties (e.g. the principal). The toller receives as consideration a tolling fee.

Commissionaires only act as intermediaries to the customers. The principal pays them a commission fee. In a strip-buy-sell model not an agent but a reseller (LRD) is part of the supply. The difference is that a resellers becomes owner of the goods.

VAT Automation of complex business models

In the last decade, companies have increasingly automated their business processes. The most common method is by using an Enterprise Resource Planning (ERP) system. Such a set up can be hugely complex. This is definitely the case where it relates to European based indirect tax. As manual processes are subject to human error, automation could – under circumstances – result in performance improvements and savings.

There are all kinds of business reasons for setting up such centralized models. The challenge from an implementation perspective is indirect tax.

What Makes It Complex?

LRDs and Commissionairs have neither legal ownership to the inventory during storage nor during transport as the Principal is at that stage still the legal owner. It is often the case that the Principal delivers the goods physically and directly to the final customer.

This creates only one physical departure of goods (`goods issue’) in the ERP system. However, two invoices should be raised (one from Principal to LRDs/Commissionairs and one from the LRD/Commissionaire to the final customer.

In the ERP system, the correct ‘ship from’ information at the LRD and Commissionaire level is missing so that the VAT treatment by the system is determined based on the ‘ship from’ and ‘ship to’ information present at the Principal level. In principle, for cross-border transactions this results in the incorrect VAT treatment.

Therefore, in practice, it is time consuming to correctly configure the ‘tax determination logic’ set up. You need to know your practical workarounds, preferable in the design stage.

Even more bottlenecks in case of a commissionaire structure

A “Commissionaire Model” has some more bottlenecks. Since according to civil law, the “commissionaire” does not have ownership, the commissionaire does not own any inventory not even temporarily. That is different with the LRD as a LRD becomes owner via flash title for a very short period.

A “commissionaire” is never the legal owner of the goods. From a VAT perspective, the commissionaire however acts as though he was the owner and a fictitious supply takes place to and subsequently by the commissionaire. The commissionaire has to issue invoices in his own name which can create problems if there are no bookings with respect to inventory.

High level comparison between LRD, Commissionaire and Agent

A sales Principal located in non-EU country will create more complex registration and trading issues. VAT treatment for Commissionaires and LRDs in principle similar (buy and sell), but with different legal flows.

A LRD creates opportunity to have local inventory on LRD books, provided all relevant aspects have been resolved. Different accounting rules exist for LRDs compared to Commissionaires.

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Implementation

Once a commercial and tax-efficient structure is determined—one that addresses both historical and potential risk—it is time to take the theory behind the structure into the realm of practice.

Will using a classic principal structure in the new entity help keep maximum profits in low tax jurisdictions? If so, one entity will own title to inventory throughout the various jurisdictions and the principal would require a VAT registration in each location where inventory is held.

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In some countries, particularly Asia and Latin America, a VAT registration will crystallize a permanent establishment for corporate income tax purposes. This could mean for example an increase in the US corporation’s foreign tax compliance obligation and could increase the amount of tax due as well as the workload.

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From Global Indirect Tax Management by Richard Cornelisse

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