(2) For the purposes of this Division, an event occurs about the same time as another event if the first event occurs:
(a) on the same day as the other event; or
(b) within the 45 days immediately before, or the 45 days immediately after, the day on which the other event occurs.
(3) For the purposes of this Division, 2 persons shall be deemed to be related to each other if, and only if:
(a) both being natural persons:
(i) they are members of the same family; or
(ii) one of them is an officer or director of a body corporate controlled, directly or indirectly, by the other;
(b) both being bodies corporate:
(i) both of them are controlled, directly or indirectly, by a third person (whether or not a body corporate);
(ii) both of them together control, directly or indirectly, a third body corporate;
(iii) the same person (whether or not a body corporate) is in a position to cast, or control the casting of, 5% or more of the maximum number of votes that might be cast at a general meeting of each of them;
(c) one of them, being a body corporate, is, directly or indirectly, controlled by the other (whether or not a body corporate);
(d) one of them, being a natural person, is an employee, officer or director of the other (whether or not a body corporate); or
(e) they are members of the same partnership.
Note: In relation to the reference to member of a family in subparagraph (3)(a)(i), see also section 4AAA.
(4) A person, whether or not a body corporate, shall be taken to control another body corporate for the purposes of subsection (3) if that person has the capacity to impose any restraint or restrictions upon, or to exercise any direction over, that other body corporate.
(5) Without, by implication, affecting the meaning of any reference to an owner of goods in any other provision of this Act, a reference in this Division to the owner of goods, being a ship or aircraft, shall not be taken to include a person acting as agent for the owner or receiving freight or other charges payable in respect of the ship or aircraft.
155 Interpretation—Buying commission
(1) Subject to subsection (2), a reference in this Division to a buying commission in relation to imported goods is a reference to an amount paid or payable by or on behalf of the purchaser of the goods directly or indirectly to a person who, as an agent of the purchaser, represented the purchaser in the purchase of the goods in the import sales transaction.
(2) An amount paid by a purchaser of imported goods to another person in the circumstances referred to in subsection (1) shall be taken not to be a buying commission unless a Collector is satisfied that that other person did not and does not:
(a) produce, in whole or in part, or control the production, in whole or in part of:
(i) the imported goods, or any other goods whose value would be taken into account in determining, or attempting to determine, the transaction value of the imported goods; or
(ii) any other goods of the same class as goods referred to in subparagraph (i);
(b) supply, or control the supply of, any services:
(i) whose value would be taken into account in determining, or attempting to determine, the price of the imported goods; or
(ii) any other services of the same class as the services referred to in subparagraph (i);
(c) transport the imported goods, or any other goods referred to in subparagraph (a)(i), within any foreign country, between a foreign country and Australia, or within Australia, for any purpose associated with the manufacture or importation of those imported goods;
(d) purchase, exchange, sell, or otherwise trade any of the goods referred to in subparagraph (a)(i) or supply any of the services referred to in subparagraph (b)(i) other than in the capacity of an agent of the purchaser;
(e) in relation to any of the goods referred to in subparagraph (a)(i) or any of the services referred to in subparagraph (b)(i):
(i) act as an agent for, or in any other way represent, the producer, supplier, or vendor of the goods or services; or
(ii) otherwise be associated with any such person except as the agent of the purchaser; or
(f) claim or receive, directly or indirectly, the benefit of any commission, fee or other payment, in the form of money, letter of credit, negotiable instruments, or any goods or services, from any person as a consequence of the import sales transaction, other than commission received from the purchaser for the services rendered by that person in that transaction.
156 Interpretation—Identical goods and similar goods
(1) Subject to subsection (2), a reference in this Division to identical goods, in relation to imported goods is a reference to goods that a Collector is prepared, or is required by their owner, to treat as identical goods in relation to the imported goods, being goods that the Collector is satisfied:
(a) are the same in all material respects, including physical characteristics, quality and reputation, as the imported goods;
(b) were produced in the same country as the imported goods; and
(c) were produced by or on behalf of the producer of the imported goods;
but not being goods in relation to which:
(d) art work, design work, development work, engineering work undertaken, or substantially undertaken, in Australia; or
(e) models, plans or sketches prepared, or substantially prepared, in Australia;
was or were supplied directly or indirectly by or on behalf of the purchaser free of charge or at a reduced cost for use in relation to their production.
(2) Where a Collector, after reasonable inquiry, is not aware of any goods that may be treated under subsection (1) as identical goods in relation to the goods to be valued, the Collector shall disregard the requirement in paragraph (1)(c) for the purpose of treating goods as identical goods in relation to the imported goods.
(3) Subject to subsection (4), a reference in this Division to similar goods, in relation to imported goods, is a reference to goods that a Collector is prepared, or is required by their owner, to treat as similar goods in relation to the imported goods, being goods that the Collector is satisfied:
(a) closely resemble the imported goods in respect of component materials and parts and in respect of physical characteristics;
(b) are functionally and commercially interchangeable with the imported goods having regard to the quality and reputation (including any relevant trade marks) of each lot of goods;
(c) were produced in the same country as the imported goods; and
(d) were produced by or on behalf of the producer of the imported goods;
but not being goods in relation to which:
(e) art work, design work, development work or engineering work undertaken, or substantially undertaken, in Australia; or
(f) models, plans or sketches prepared, or substantially prepared, in Australia;
was or were supplied directly or indirectly by or on behalf of the purchaser free of charge or at a reduced cost for use in relation to their production.
(4) Where a Collector, after reasonable inquiry, is not aware of any goods that may be treated under subsection (3) as similar goods in relation to the goods to be valued, the Collector shall disregard the requirement in paragraph (3)(d) for the purpose of treating goods as similar goods in relation to the imported goods.
157 Interpretation—Royalties
(1) A reference in this Division to a royalty includes a reference to an amount paid or credited (however described or computed and whether the payment or credit is periodical or not) to the extent to which the amount is paid or credited as consideration for:
(a) the making, use, exercise or vending of an invention or the right to make, use, exercise or vend an invention;
(b) the use of, or the right to use:
(i) a design or trade mark;
(ii) confidential information; or
(iii) machinery, implements, apparatus or other equipment;
(c) the supply of scientific, technical, industrial, commercial or other knowledge or information;
(d) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any matter falling within any of the foregoing paragraphs; or
(e) a total or partial forbearance in respect of any matter falling within any of the foregoing paragraphs (including paragraph (d)).
(2) Where:
(a) a person pays an amount of royalty in respect of goods at a time when the goods are not imported goods;
(b) the goods are imported goods before or after the payment; and
(c) the payment is made in connection with a scheme entered into or carried out for the purpose of the payment not being royalty for the purposes of this Division;
the payment shall be deemed, for the purposes of this Division, to have been made at a time when the goods were imported goods.
(3) In this section:
design means a design of a kind capable of being registered under the Designs Act 2003, whether or not it is registered under that Act or any other law.
payment, in relation to an amount, includes the incurring of a liability to pay, and the crediting of, the amount.
scheme means:
(a) an agreement, arrangement, understanding, promise or undertaking, whether formal or informal, whether express or implied and whether or not enforceable, or intended to be enforceable, by legal proceedings; or
(b) a plan, proposal, action, course of action or course of conduct, whether unilateral or otherwise.
use, includes hire‑out, lease‑out, rent‑out, sell, market, distribute or otherwise trade in or dispose of.
(4) For the purposes of this section, a scheme shall be taken to be entered into or carried out for a particular purpose if the person who has, or one or more of the persons who have, entered into or carried out the scheme or a part of the scheme did so for that purpose or for purposes including that purpose.
158 Interpretation—Transportation costs
Where the purchaser of imported goods:
(a) has supplied any production material, production tooling or work goods in relation to those imported goods to a person in a foreign country for the purposes related to the production of those imported goods; or
(b) has supplied any subsidiary goods to a person in a foreign country for purposes related to the production of production materials, production tooling, work goods or work services in relation to those imported goods;
references in this Division to the cost of transporting that production material or production tooling or those work goods or subsidiary goods, after its or their acquisition or production by the purchaser, to the place of production in that foreign country shall be taken to include:
(c) the packing costs for materials and labour paid or payable by or on behalf of the purchaser in relation to that production material, or production tooling or those work goods or subsidiary goods including, but without limiting the generality of the foregoing, costs of fumigating, cleaning, coating, wrapping or otherwise preparing the material tooling or goods for transportation to the place of production of the imported goods;
(d) any amount paid or payable by or on behalf of the purchaser in relation to that production material or production tooling or those work goods or subsidiary goods that would:
(i) if that foreign country were Australia;
(ii) if any other country from which that material or tooling or those goods were exported were a foreign country; and
(iii) if that material or tooling or those goods were imported goods;
be an amount of foreign inland freight or foreign inland insurance, overseas freight or overseas insurance, or Australian inland freight or Australian inland insurance; and
(e) all duties of Customs, sales tax, or other duties or taxes paid or payable in consequence of the importation of that production tooling or those work goods or subsidiary goods or in consequence of any other use, sale or disposition in that foreign country.
159 Value of imported goods
(1) Unless the contrary intention appears in this Act or in another Act, the value of imported goods for the purposes of an Act imposing duty is their customs value and the Collector shall determine that customs value in accordance with this section.
(2) Where a Collector can determine the transaction value of imported goods, their customs value is their transaction value.
(3) Where a Collector cannot determine the transaction value of imported goods but can determine their identical goods value, their customs value is their identical goods value.
(4) Where a Collector:
(a) cannot determine the transaction value of imported goods; and
(b) cannot determine their identical goods value;
but can determine their similar goods value, their customs value is their similar goods value.
(5) Where a Collector:
(a) cannot determine the transaction value of imported goods, not being computed valued goods;
(b) cannot determine their identical goods value; and
(c) cannot determine their similar goods value;
but can determine their deductive (contemporary sales) value, their customs value is their deductive (contemporary sales) value.
(6) Where a Collector:
(a) cannot determine the transaction value of imported goods, not being computed valued goods;
(b) cannot determine their identical goods value;
(c) cannot determine their similar goods value; and
(d) cannot determine their deductive (contemporary sales) value;
but can determine their deductive (later sales) value, their customs value is their deductive (later sales) value.
(7) Where a Collector:
(a) cannot determine the transaction value of imported goods, not being computed valued goods but being request goods;
(b) cannot determine their identical goods value;
(c) cannot determine their similar goods value;
(d) cannot determine their deductive (contemporary sales) value; and
(e) cannot determine their deductive (later sales) value;
but can determine their deductive (derived goods sales) value, their customs value is their deductive (derived goods sales) value.
(8) Where a Collector:
(a) cannot determine the transaction value of exporter’s goods, not being computed valued goods;
(b) cannot determine their identical goods value;
(c) cannot determine their similar goods value;
(d) where they are request goods, cannot determine any of their deductive values; and
(e) where they are not request goods:
(i) cannot determine their deductive (contemporary sales) value; and
(ii) cannot determine their deductive (later sales) value;
but can determine their computed value, their customs value is their computed value.
(9) Where a Collector:
(a) cannot determine the transaction value of imported goods, being computed valued goods;
(b) cannot determine their identical goods value; and
(c) cannot determine their similar goods value;
their customs value is their computed value.
(10) Where a Collector:
(a) cannot determine the transaction value of imported goods;
(b) cannot determine their identical goods value;
(c) cannot determine their similar goods value;
(d) where they are request goods, cannot determine any of their deductive values;
(e) where they are not request goods:
(i) cannot determine their deductive (contemporary sales) value; and
(ii) cannot determine their deductive (later sales) value; and
(f) where they are exporter’s goods, cannot determine their computed value;
their customs value is their fall‑back value.
160 Inability to determine a value of imported goods by reason of insufficient or unreliable information
(1) Where a Collector is not satisfied that there is sufficient reliable information available to the Collector, being information of a kind referred to in subsection (2), to enable him or her to determine a value of imported goods in accordance with a provision of this Division for determining their customs value, the Collector may determine, in writing, that he or she is not so satisfied and the Collector shall thereupon be taken to be unable to determine that first‑mentioned value.
(2) Where a Collector is not satisfied that there is sufficient reliable information available to the Collector to enable him or her to determine the quantity and correctness of any amount that is required to be taken into account in determining a value of those goods in accordance with a provision of this Division for determining the customs value of imported goods, then:
(a) where that amount would ordinarily form part of their customs value under the particular valuation method set out in that provision—the Collector shall determine, in writing, that he or she is not so satisfied and the Collector shall thereupon be taken to be unable to use that method;
(b) where that amount would ordinarily be deducted from the amount that would otherwise be their customs value under the particular valuation method set out in that provision:
(i) if the Collector determines, in writing, that he or she is not so satisfied and that he or she does not desire to use the method—the Collector shall thereupon be taken to be unable to use that method; and
(ii) if the Collector determines, in writing, that he or she is not so satisfied but that he or she desires to use the method—the Collector may use the method but no deduction shall be allowed on account of that amount.
161 Transaction value
(1) The transaction value of imported goods is an amount equal to the sum of their adjusted price in their import sales transaction and of their price related costs to the extent that those costs have not been taken into account in determining the price of the goods.
(2) In this section:
adjusted price, in relation to imported goods, means the price of the goods determined by a Collector who deducts from the amount that, but for this subsection, would be the amount of that price, such amounts as the Collector considers necessary to take account of the following matters: