14. KER & CO LTD. Vs LINGAD Topic: F. Distinguished from or compared with other relations: 6.

Sale (Art 1458) Nature: Petition to reverse a decision of the Court of Tax Appeals Facts: The then Commissioner of Internal Revenue Domingo assessed the petitioner to pay Php20,272 as commercial brokers percentage tax. The petitioner requested for its cancellation but was denied and deemed liable as an agent of United States Rubber International, referred here as the Company. The petitioner was the Companys distributor. Their contract provides that the petitioner, as distributor, cannot dispose of the products for shipment elsewhere than the designated places. But the crucial stipulations state that 1) the consignment remains property of the Company until sold by the distributor and 2) the distributor is not constituted as an agent of the Company by this contract for any purpose whatsoever. Issue: WON the petitioner should be liable for the commercial brokers percentage tax as the agent of the company given the stipulation in their contract Held: YES Rationale: The Court of Tax Appeals was correct in deciding that the petitioner Ker & Co., Ltd is, by contractual stipulation, an agent of the Company as all the circumstances are antagonistic to the idea of an independent merchant. According to the National Internal Revenue Code, a commercial broker includes all persons who, for compensation or profit, sell or bring about the sales or purchase of merchandise for other persons, or bring proposed buyers together The test to see who falls under this definition was penned by Justice JBL Reyes in CIR vs Constantino stating since the company retained ownership of the goods, the price and the terms subject to it, the relationship of the company and the dealer is one of agency. Salisbury vs Brooks support this view stating that if the transfer of title puts the transferee in the attitude or position of an owner and makes him liable to the transferor as a debtor for the agreed price, and not merely as an agent who must account for the proceeds of a resale, it is a sale; while the essence of an agency to sell is the delivery to an agent, not as his property, but as the property of the principal, who remains the owner and has the right to control sales, fix the price and terms, demand and receive the proceeds less the agents commission upon sales made.