There was a time not so long ago when adult website operators created “billing companies” in favorable jurisdictions, whose sole purpose was to bill customers for services provided by the operator, and remit the settled funds to the operator. The customer was typically indifferent to the identity and location of the billing company, so long as the payment went through and the products or services were delivered. However, credit card associations have become increasingly insistent that Merchants have a physical location, and be organized where business is actually conducted. Concerns with consumer protection, fraud, and money laundering have now resulted in tighter restrictions on the identification and location of Merchants’ operating companies.
In August, 2016, VISA issued a “Clarification” of its Core Rules regarding the location of Merchant Outlets. Effective in October, 2016, any Merchant Outlet involved in Electronic Commerce is required to have a Permanent Establishment through which transactions are completed. If only digital goods are sold, the Merchant must use the country where the principles of the company actually work. The Merchant must also hold a valid business license, maintain a local address, and pay applicable sales taxes. The Merchant’s address for cardholder correspondence must be clearly displayed on the checkout screen, along with various shipping and refund / cancellation policies.
Presumably, these rules prohibit website operators from simply incorporating a billing company in a jurisdiction like the United States, if the principles work in other locations. Moreover, “shell” corporations with no business license or physical address would be prohibited from serving as a Merchant’s operating company.
More recently, based on information from multiple sources inside the payment processing industry, VISA EU intends to implement new rules that are scheduled to take effect on January 31, 2017. These rules carry potentially heavy burdens for affected Merchants and Sub-merchants, as they will require companies to show a presence in their country of incorporation and to also retain at least some of their processing funds there rather than settle all those funds to another jurisdiction.
Non-compliance with these restrictions can be crippling. A first violation carries a €50,000 fine, albeit suspended until the end date of the cure period. A second violation within 12 months of the first is €100,000, with a monthly increase thereafter of €150,000 above the prior month’s accumulated penalties (e.g., at month 3; €300,000 and so forth).
The new rules can be summarized as follows:
- The Merchant’s country of incorporation must be within the Acquirer’s Territory;
- A majority of the Merchant’s directors must be in the Acquirer’s Territory;
- The Merchant must have a valid address in its country of incorporation, within the Acquirer’s Territory; the incorporation agent’s addresses cannot be used;
- The Merchant must pay corporate tax, sales tax or VAT as required by its country of incorporation (within the Acquirer’s Territory);
- The Merchant must have a bank account to be used for settlement purposes in a country within the Acquirer’s Territory;
- The domain name must be owned by the Merchant or a parent, sister or subsidiary of Merchant;
- The Merchant must disclose its location before the customer completes the card transaction, either on the checkout screen or on a screen in the checkout sequence;
- The Terms and Conditions must clearly state that the services are provided to the customer by the Merchant, and by no one else, and that all inquiries or complaints be directed to the Merchant; and
- Merchants that are not compliant by January 31, 2017 can be subject to fines (see above for the fine schedule).
The increased scrutiny of cross-border transactions, along with the new VISA restrictions, may require substantial business restructuring by some website operators. Given the relatively brief window before these rules take effect, affected operators should consult with their business, accounting, and legal professionals promptly to begin compliance planning.