Brokering Law Firm

Commission Agent Subject to VAT Payments in the Chilean Law

This article is about Chilean companies or individuals that act as a commission agent, as an intermediary for products of foreign companies.
 
The intermediation activity is classified as a service, and on this regard, the DL N° 825 from 1974 (VAT Law) burdens with VAT the sales and services. The DL N° 825 defines as services “any action or rendering of one person to another, for which he receives an interest, premium, commission or any other kind of retribution, for activities contained in numbers 3 and 4 of the §20 of the Income Law (Ley de la Renta)” For DL 825 any services contained in the activities defined in numbers 3 and 4 of the Income Law are subject to VAT payments.
 
For the commission agents (for this purpose a commission agent is any person who acts as an intermediary receiving a commission for his services with no need to act on behalf of another person) with a fixed place of business, this kind of services are considered among the activities defined by §20 number 4 of the Income Law and therefore subject to pay taxes in accordance with the first category of Income Law and also subject to VAT payments in accordance with the statements made above. Therefore, by application of the general rules contained in the laws above mentioned, commission agents and any person who buys or sells on behalf of third party sellers [1] are subject to VAT payments, unless they fall under one of the exemptions made by law [2].
 
Therefore, to begin with, commission agents are subject to VAT payments notwithstanding the quality or classification of the principal. Nonetheless, it has to be distinguished between the services provided by the commission agent and the buy or sale that is done through his activity. In deed, we refer here only to the qualification of the service rendered by the commission agent or an agent who performs a commercial activity [3], which is a service generally subject to VAT unless it qualifies for exemption.
 
Summed up, it is the activity of the commission agent, which determines if is it burden by VAT. Therefore, commission payments received from abroad are subject to VAT, if the commission agent is a taxpayer classified in the first category of the Income tax. The only exemption in this regard is the commission agent if it is a natural person who is a taxpayer classified in the second category [4] because taxpayers classified in this category are not subject to VAT.
 
[1]Circular 126 de 1977 number 20
 
[2] §12 e num. 8 of the DL 825. Exemptions are natural persons (not legal entities) who receive income by means of §42 and 48 of the Income, classified as second category taxpayers in accordance with the Income Law. Among the requirements to be classified as such, it has to be a natural person and the origin of his income can be his paid job as a worker or through his personal actions.
 
[3] The reimbursement of expenses shall not be subject to VAT because they do not form part of the commission agent’s payment.
 
[4] Oficio num. 854 del año 2008 del SII. Requirements to be considered a commission agent classified as second category taxpayer: a) being a natural person; b) no fixed place of business; c) does not use capital in his activities, for financing own or third party operations; d) activity is done by himself without use of employers or third parties.

 

Author: Rodrigo Schönherr