VES-12-02:CO:R:P:C 110970 BEW

John W. McConnell, Jr.
Haight, Gardner, Poor & Havens
44 Montgomery Street, Suite 2765
San Francisco, California 94104

RE: Dutiability of a pleasure yacht; foreign corporate ownership; returning resident; "short visit"; not "permanently" imported; primary asset of corporation; cruising license; entry requirements.

Dear Mr. McConnell:

This is in reference to your letter date April 5, 1989, in which you request a ruling on behalf of Mrs. John B. Rogers concerning the arrival of the British-flag yacht MIKADO in the U. S. waters.

FACTS:

You state that Mrs. Rogers is a U.S. citizen who makes her home aboard the MIKADO. You state that in 1987, Mrs. Rogers sold her home in Florida and used the proceeds to fund the purchase of the subject yacht. You state that the MIKADO was built in Japan in 1987, and is British-registered. You state that the vessel is legally owned by a corporation organized under the laws of the Island of Jersey, Channel Islands, United Kingdom, that the sole owner of that corporation is a trust organized and existing under the laws of Maine, that the sole beneficiary of the trust is Mrs. Rogers, and that Mrs. Rogers is the Trustee of the trust.

You state that Mrs. Rogers has sailed in waters, and called at the ports of various countries in the Pacific, Canada and Mexico, that the MIKADO has transited the Panama Canal, and that it is presently in the Caribbean. You state that Mrs. Rogers intends to continue cruising throughout the world, and does not intend to bring the MIKADO to any fixed base of operations. You state that Mrs. Rogers would like to call at U.S. ports under a cruising permit before moving on to other ports outside the United States. You state that Mrs. Rogers' plans are to sail the waters of the United States for approximately six (6) to (8) weeks, then sail to the Mediterranean after departing North American waters, and that she does not intend to put the MIKADO up for sale or charter in U.S. waters or to bring it permanently into the United States.

ISSUES:

1. Is a foreign-flag, foreign-built pleasure vessel owned by a foreign corporation dutiable when brought into the United States by a returning resident for her own personal use?

2. In ISSUE 1, does the length of time the returning resident plans to use the vessel have any effect on its dutiability?

3. In ISSUE 1, does the fact that the vessel will be exported from the United States after a short stay have any effect on its dutiability?

4. Is a foreign-flag pleasure vessel which is the primary asset of a foreign corporation, the sole owner of which corporation is a trust organized and existing under the laws of U.S., and the sole beneficiary and trustee of the trust is a U.S. resident, dutiable, in whole or in part, when the vessel is brought into the United States by the resident/citizen for her own personal use?

5. Whether a cruising license may be issued to a foreign-flag pleasure boat, owned by a United States resident or foreign corporation stated in ISSUE No. 4, when the vessel enters the United States for a temporary visit.

LAW AND ANALYSIS:

Generally, a yacht or pleasure boat, regardless of length or tonnage, whether motor, sail or steam propelled, owned by a resident of the United States or brought into the United States for sale or charter to a resident thereof, is dutiable under Chapter 89, subheadings 8903.91.00 or 8903.92.00 of the Harmonized Tariff Schedules of the United States (HTSUS), at a rate of 1.5 percent ad valorem.

Generally, the value of all merchandise, exported to the United States on or after July 1, 1980, will be the transaction value of goods. The transaction value of imported merchandise is the price actually paid or payable for the merchandise when sold for exportation to the United States, plus expenses for packing costs, selling commission, assists, royalty or license fees, proceeds accruing to the seller, or any subsequent resale, disposal or use of the imported merchandise.

Any duty due on the vessel is collectible when it is first imported. The determination of whether or not a yacht is dutiable when it has previously been subject to Customs entry and payment of duty is dependent on whether it has been exported from the United States after its first importation. If it has been exported, it is again dutiable as an importation under Chapter 89, subheadings 8903.91.00 or 8903.92.00, HTSUS. Exportation, in this context, is defined as occurring when the yacht is severed from the mass of things belonging to this country with the intention of being united with the mass of things belonging to some foreign country (see section 101.1(k), Customs Regulations (19 CFR 101.1(k)). Merely removing a yacht from U.S. territorial waters on a temporary foreign pleasure cruise with the intent to return it to the United States thereafter would not constitute an exportation.

In addition, it should be noted that any past or future transfers of ownership of a vessel that take place while it remains within the United States do not affect its duty-paid status provided the circumstances surrounding the transfers of ownership do not indicate that an exportation has occurred within the meaning of section 101.1(k).

In applying the said HTSUS subheadings to corporate owners of pleasure vessels, we have ruled that a pleasure vessel owned by a foreign corporation, the stock of which is wholly owned by one or more residents of the United States is "owned by a resident of the United States," for purposes of paragraph 370, Tariff Act of 1930, as amended (the predecessor of items 696.05 and 696.10, TSUS, the predecessor of HTSUS 8903.91.00 or 8903.92.00) (see Treasury Decision 54680(14)).

Treasury Decision 54680(14) was modified in ruling letter MS 433.51 R, March 2, 1965, so that a pleasure vessel owned by a foreign corporation owned by another foreign corporation which was wholly owned by a United States citizen and resident was not dutiable when it arrived in the United States because the foreign corporate owner was not created for the purpose of owning the pleasure vessel. In this ruling, ownership of the pleasure vessel appeared to be incidental to the business of the corporation. There was no evidence indicating the title to the pleasure vessel was taken by or placed in the corporation to avoid duty.

On the basis of the foregoing, a foreign-flag, foreign-built pleasure vessel owned by a foreign corporation is not dutiable when brought into the United States by a returning resident for his own personal use unless a substantial portion of the capital stock of the foreign corporate owner of the vessel is owned by one or more residents of the United States and the vessel is the primary asset of the corporation or the primary business of the corporation relates to the vessel. Of course, if the vessel is brought into the United States for sale or charter to a resident of the United States, it is dutiable in any case.

In the subject case, the evidence reveals that the vessel is the primary asset of the foreign corporation. Thus, it is the position of the Customs Service that a pleasure vessel owned by a foreign corporation, the primary asset of which is the vessel or the primary business of which relates to the use of the vessel, is considered owned by a resident of the United States if a substantial portion of the capital stock is owned by one or more residents of the United States (see p. 3, Pleasure Boats pamphlet (1984)). "Substantial portion," as used in the above statement, means more than half.

The dutiability of a foreign-flag vessel belonging to a foreign corporation, the majority of the capital shares of which are owned by United States residents/citizens, is not affected by the use of the vessel in United States waters by one or all of the shareholders of the corporation. Nor is the dutiability of such a vessel affected when the shareholders are permitted to "accompany" the vessel in United States waters. Under T.D. 54680(14), the vessel is dutiable on arrival in the United States, unless the vessel is not the primary asset of the foreign corporate owner and the primary business of the corporation does not relate to the vessel.

For your information, 19 CFR 148.2(b) provides that citizens of the United States ... shall be deemed residents of the U.S. returning from abroad within the meaning of "residents" as used in Chapter 98, subchapter IV, HTSUS (19 U.S.C. 1202), in the absence of satisfactory evidence that they have established a home elsewhere.

The length of time a returning resident plans to use a pleasure vessel may have an effect on its dutiability. Under sections 148.2(d) and 148.8, Customs Regulations, a person arriving in the United States who would otherwise be considered a returning resident may claim the status of a nonresident if he intends to remain in the United States for only a short period of time before returning abroad. A person claiming this status could import his pleasure vessel into the United States for the duration of his short stay under the duty-free provision of Chapter 98, subheading 9804.00.35, Harmonized Tariff Schedule of the United States (19 U.S.C. 1202). Customs has held, however, that a stay in excess of 30 days raises a strong presumption that the visit does not fall into the category of a "short visit" within the meaning of section 148.2(d).

With further reference to a yacht owned and brought into the United States by a resident thereof, the Customs Court, in the case of Estate of Lev. H. Pritchard v. United States, 43 CCPA 85, C.A.D. 612 (1956), interpreted items 696.05 and 696.10 (the predecessor to subheadings 8903.91.00 and 8903.9200) to mean that such a yacht, in the absence of clear evidence to the contrary, would be presumed to be brought into the United States for use here "permanently" so that it would be properly classifiable as imported merchandise and thus subject to the appropriate Customs duty.

This presumption can be overcome by satisfactory evidence that the yacht owner did not intend to bring the yacht into this country permanently. The Astral case, Astral Corp. v. United States, 72 Cust. Ct. 245, CD 4546 (1974), to which you referred in your letter, held that a yacht which came to the United States during the course of a shakedown cruise and received repairs while in the United States was not imported, within the meaning of General Note 1, HTSUS (predecessor to General Headnote 1, TSUS), because it was not brought "permanently" into the United States.

The evidence which the court in the Astral case discussed concerning the issue of whether or not the yacht was brought "permanently" into the United States consisted, in part, of the following:

(1) Testimony that the yacht was on a shakedown cruise and the owner never intended that it be brought into the United States permanently;

(2) Evidence of the repairs completed on the yacht while it was in the United States and testimony that those repairs could only have been completed in the United States;

(3) Testimony by the owner that he planned to move his interests to Europe and was buying a home there;

(4) Evidence of features in the yacht's design which were incorporated for use in the Mediterranean; and

(5) The fact that the yacht's shakedown cruise did terminate in the Mediterranean where, at the time the case was tried, the yacht was being readied for chartering.

After a complete review of the evidence, it appears that Mrs. Rogers does not intend to bring the yacht into the United States permanently. Accordingly, we find that the subject vessel is not being imported within the meaning of General Note 1, HTSUS because it is not being brought "permanently" into the United States. It should be noted however, that this determination is premised on the fact the vessel will not remain in the United States more than 6 or 8 weeks. If Mrs. Rogers' plans change and the vessel is to remain in U.S. waters for a longer period of time, then the yacht will be considered to be imported into the United States. If in fact the subject yacht is imported, it must be entered under Customs entry procedures as set forth below.

Title 19, United States Code, sections 1498 and 1499 provide for the entry and examination of imported merchandise. Under the provisions of title 19, Code of Federal Regulations, section 142.4, the yacht shall not be released from Customs custody until the entry documentation or entry summary documents have been filed as required by title 19, Code of Federal Regulations, section 142.3, unless a single entry or continuous bond on Customs Form 301, executed by an approved corporate surety, or secured by cash deposits or obligations of the U.S. is filed. The estimated duties and taxes, if any, shall be deposited at the time the entry is presented and accepted by a Customs officer. Final duties are determined at the time of liquidation which can take up to a year. The filing of a bond permits you to take custody of the vessel prior to liquidation.

Further, under the provisions of the Federal Boat Safety Act of 1971, a person importing a yacht for his personal use is required to file a bond when a declaration is made that the yacht is to be brought into conformity with the safety standards for boats and associated equipment. Even if the yacht complies with the U.S. Coast Guard requirements, it must be entered and it must meet Customs requirements prior to its being released to the importer for use in the United States.

Lastly, the master of any foreign vessel arriving in a United States port, whether from a foreign port or another United States port, is required under the provisions of title 19, United States Code, section 1433 to immediately report its arrival. Section 1433, provides in pertinent part, that immediately upon the arrival at any port or place in the United States or Virgin Islands of: (1) any vessel from a foreign port or place; (2) any foreign vessel from a domestic port; or (3) any vessel of the United States carrying bonded merchandise, or foreign merchandise for which entry has not been made, the master of the vessel shall report the arrival at the nearest customs facility or such other place as the Secretary may prescribe by regulation.

In addition, the master of any foreign vessel arriving in a United States port, whether from a foreign port or another United States port is required to make vessel entry under title 19, United States Code, section 1435 (19 U.S.C. 1435), and section 4.3 of the Customs Regulations (19 CFR 4.3). Such vessels are also required to clear when bound for a foreign port, and must have a permit to proceed from one United States port to another.

Title 46, United States Code Appendix, section 104 (46 U.S.C. App. 104), authorizes the issuance of cruising licenses to pleasure vessels of countries which extend reciprocal privileges to United States pleasure vessels. Great Britain is such a country. The determining factor as to whether a vessel is eligible for a cruising license is the documentation of the vessel and not the residency of the owner. Section 4.94 of the Customs Regulations, concerns the issuance of cruising licenses which exempt foreign yachts from formal entry and clearance procedures. Subsequent to the receipt of the cruising license, yachts may arrive and depart from the United States and cruise in specified waters of the United States without entering and clearing, without filing manifests and obtaining or delivering permits to proceed, and without the payment of entrance and clearance fees, or fees for receiving manifests and granting permits to proceed, duty on tonnage, tonnage tax, or light money. The license is granted subject to the condition that the vessel will not engage in trade or violate the laws of the United States in any respect. (See 19 CFR 4.94(c), copy enclosed). A cruising license does not exempt a vessel from the requirement to report its arrival in the United States to Customs immediately upon such arrival (see 19 U.S.C. 1433 and 19 CFR 4.2).

We emphasize that although cruising licenses exempt yachts having them from the above described requirements while cruising in the United States, they are not required as a condition precedent to cruising in the United States or its waters.

Cruising licenses, as their name implies, are intended for the use of foreign vessels on relatively brief cruises in the United States and are not to be used as a form of permanent license to permit a foreign vessel to remain indefinitely in our waters. A cruising license is not renewable.

Pursuant to 46 U.S.C. App. 104 and 19 CFR 4.94, an application for a cruising license is to be filed with Customs by the vessel owner or master. Only yachts which are "used and employed exclusively as pleasure vessels" (see 46 U.S.C. App. 104) may be granted cruising licenses. HOLDINGS:

1. A foreign-flag pleasure vessel belonging to a foreign corporation, the majority of the capital shares of which are owned by United States residents/citizens, is only dutiable when the vessel is brought into the United States by a resident for his own personal use and the vessel is the primary asset of the corporation or the primary business of the corporation relates to the vessel. The length of time the returning resident plans to use the vessel may have an effect on its dutiability (see the so- called "short visit" rule, sections 148.2(d) and 148.8, Customs Regulations). The fact that the vessel is not being brought into the United States "permanently" and will be exported from the United States after a short stay may also have an effect on its dutiability.

2. A cruising license may be issued to a British-flag pleasure boat, owned by a United States resident, when the vessel enters the United States for a temporary visit. A cruising license does not exempt a vessel from reporting its arrival immediately to the Customs. A cruising license issued to a British-flag pleasure boat, owned by a United States resident, does not exempt the owner from the payment of duty on the vessel when it enters at the first port of arrival.

Sincerely,

B. James Fritz
Chief
Carrier Rulings Branch