Commission agency versus outright sale turns on custody of goods and allocation of loss risk before transaction classification.

The true character of transactions as commission agency or outright sale depends on applying factual tests, including who had legal custody of the goods at the relevant time and who would bear the risk if the goods were lost while in the intermediary's custody. The record was found insufficient because the Tribunal had not applied these proper tests. The referred question was therefore not answered on the existing material, and the matter was remitted for reconsideration after hearing the parties and examining the relevant factors in accordance with law.

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Issues: Whether the question referred regarding the true character of the transactions, namely, whether the intermediary acted as a commission agent or as a purchaser, could be answered on the record.

Analysis: The record showed that the Tribunal had not applied the proper tests for distinguishing an outright sale from a commission agency transaction. Relevant considerations included who had legal custody of the goods at the material time and who would bear the loss if the goods were lost while in the intermediary's custody. Without examining these aspects, it was not possible to decide whether the intermediary was a purchaser or a commission agent in relation to the transactions.

Conclusion: The referred question was declined to be answered and the matter was left for reconsideration by the Tribunal after hearing the parties and examining the indicated factors in accordance with law.

Final Conclusion: The reference did not finally determine the tax treatment of the disputed transactions and required further examination by the Tribunal.

Ratio Decidendi: The true nature of a transaction as commission agency or outright sale must be determined by applying factual tests such as custody of the goods and allocation of risk of loss.

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