PRO-2-02-CO:R:C:E 222875 PH
Regional Commissioner of Customs
South Central Region
RE: Protest 1901-9-000016; Protest 1901-7-000003; Untimely
Voluntary Reliquidation; Void or Voidable Liquidation;
Effect on Protest of Reliquidation; Questions Subject which
May be Protested in Protest against Reliquidation; 19 U.S.C.
1501; 19 U.S.C. 1514
Dear Sir:
The above-referenced protest was forwarded to this office
for further review. We have considered the points raised by your
office and the protestant. Our decision follows.
FACTS:
The protestant imported merchandise on January 10, 1983.
The date of the entry was January 12, 1983. The merchandise was
described on the entry as a "bark fired boiler & parts" and a
"chemical recovery unit for use in pulp manufacturing". The 1-
year statutory period for liquidation was timely extended three
times and notices of the extensions were timely sent to the
importer. On June 18, 1986, in response to a submission dated
June 20, 1985, from the representative of the protestant, Customs
Headquarters issued a ruling (File No. 077064) to the appropriate
District Director of Customs holding that the components under
consideration must be classified in their condition as imported
and providing tariff classifications for those components which
were adequately described.
By Notice of Action dated October 27, 1986, Customs advised
the protestant of a rate advance for the entry under considera-
tion. The entry was liquidated on November 14, 1986, with an
increase in duty due over the duty as entered of $143,466.49.
The protestant filed protest 1901-7-000003, protesting the clas-
sification as liquidated, on February 11, 1987. On February 13,
1987, Customs voluntarily reliquidated the entry, under the
authority of 19 CFR 173.3, decreasing the duty due by $17,004.49
(i.e., providing for a refund in that amount).
On April 5, 1988, Customs Headquarters issued a ruling (File
No. 079730) supplementing its June 18, 1986, ruling (see above)
on the basis of additional submissions received from the protes-
tant's representative. On April 17, 1989, protest 1901-7-000003
was denied, on the basis of the June 18, 1986, and April 5, 1988,
rulings from Headquarters. On May 12, 1989, the entry was
reliquidated by Customs, under the authority of 19 CFR 173.3 and
19 U.S.C. 1520(c), increasing the duty due by $40,793.00. (Note:
the statute cited as authority for reliquidation should have been
19 U.S.C. 1501; 19 U.S.C. 1520(c) could not be applicable because
the error, etc., if any, was not adverse to the importer.) On
June 21, 1989, the protestant filed protest 1901-9-000016, the
protest under consideration, claiming that the entries should
have been deemed liquidated one year after entry under 19 U.S.C.
1504 (the protestant claims that there was no extension or
suspension of the liquidation under that statute) and that the
classification, as liquidated, was incorrect.
ISSUES:
(1) Is the untimely voluntary reliquidation of an entry,
under 19 U.S.C. 1501, voided when timely protested under 19
U.S.C. 1514?
(2) Is the earlier untimely voluntary reliquidation of the
same entry referred to in ISSUE (1) voided when untimely
protested under 19 U.S.C. 1514?
(3) What is the effect on the protest under consideration
of the holdings with regard to ISSUES (1) and (2)?
LAW AND ANALYSIS:
Initially, we will summarize the key procedural events
involved in this case. After importation of the merchandise on
January 10, 1983, the entry was liquidated on November 14, 1986.
The protestant protested this liquidation on February 11, 1987,
and the protest was denied on April 17, 1989. In the meantime,
Customs reliquidated the entry on February 13, 1987, under the
authority of 19 CFR 173.3. On May 12, 1989, Customs again
reliquidated the entry, under the authority of 19 CFR 173.3 and
19 U.S.C. 1520(c). On June 21, 1989, the protestant protested
the reliquidations.
Under 19 CFR 173.3 (promulgated under the authority of 19
U.S.C. 1501), Customs may voluntarily reliquidate the liquidation
of an entry, "notwithstanding the filing of a protest, within
ninety days from the date on which notice of the original
liquidation is given to the importer, his consignee or agent."
In this case, both the February 13, 1987, reliquidation and the
May 12, 1989, reliquidation were untimely.
An untimely reliquidation by Customs under 19 U.S.C. 1501 is
not void, but rather merely voidable (see Philip Morris v. United
States, 716 F. Supp. 1479 (CIT 1989) (affirmed in part and
reversed in part in an unpublished decision of the Court of
Appeals for the Federal Circuit, 907 Fed. 2d 158 (1990)), and
cases cited therein, including Omni U.S.A., Inc. v. United
States, 6 Fed. Cir. (T) 99, 840 F. 2d 912 (1988), cert. den., 488
U.S. 817 (1988), rehearing den., 488 U.S. 961 (1988)). "Neither
the legality nor the correctness of a reliquidation by Customs
may be disturbed unless a timely protest is filed according to
the procedures in 19 U.S.C. 1514 ... and failure to do so within
the stated period leaves the reliquidation final." (Philip
Morris v. United States, 716 F.Supp. 1479, 1481 (CIT 1989), and
cases cited therein.) In the case under consideration, the
protestant timely protested the May 12, 1989, reliquidation and,
therefore, that reliquidation is voided and the protest is
granted in this regard. However, the protestant failed to timely
protest the February 13, 1987, reliquidation. Therefore, the
February 13, 1987, reliquidation is final and the protest is
denied in this regard.
The February 13, 1987, reliquidation is the final
protestable action by Customs in this case (i.e., because the
initial liquidation was reliquidated and the reliquidation,
although untimely, was not protested and because the May 12,
1989, reliquidation was protested and voided because untimely)
(see United States v. Parkhurst & Co., 12 Ct. Cust. App. 370,
372-373, T.D. 40522 (1924)). Unless a timely protest is filed as
to a reliquidation, neither its legality nor its correctness may
be disturbed (Philip Morris v. United States, 716 F. Supp. 1479,
1481 (CIT 1989)). Therefore, the February 13, 1987,
reliquidation stands as Customs final action on this entry.
However, because of the confusion in this case (i.e., the
untimely reliquidations) and because of indications of the Court
of Appeals for the Federal Circuit in its unpublished opinion
reviewing the Philip Morris v. United States, supra, case, we
will comment briefly on the contentions made by the protestant.
Customs has no authority over, and may take no further
action with regard to, the February 11, 1987, protest because
that protest has been denied (see San Francisco Newspaper
Printing Co. v. United States, 9 CIT 517, 620 F. Supp. 738
(1985)). With regard to the claim in the protest under consider-
ation that liquidation was not extended, we are satisfied, based
upon Customs records, that liquidation was timely extended and
that notice of the extensions was provided to the importer. Even
if this were not the case and even if the protestant had timely
protested the February 13, 1987, reliquidation, this issue may
not be asserted for the first time at reliquidation because it
could have been asserted at liquidation and was not (see Audiovox
Corp. v. United States, 8 CIT 233, 598 F. Supp. 387 (1984), aff'd
3 Fed. Cir. (T) 168, 764 F. 2d 849 (1985); Computime, Inc., v.
United States, 8 CIT 259, 601 F. Supp. 1029 (1984), aff'd 3 Fed.
Cir. (T) 175, 772 F. 2d 874 (1985)). The classification issues
are addressed in the June 18, 1986, and April 5, 1988, rulings
(File Nos. 077064 and 079730, respectively (described above)).
We note that the February 19, 1971, ruling letter (File No.
010390), which is one of the primary bases for the protestant's
claim that the classification was incorrect, was explicitly
revoked (see letter dated March 13, 1978 (File No. 056271)).
Finally, under 19 U.S.C. 1514(d), only questions which were
involved in a reliquidation may be the subject of a protest
against the reliquidation (see Computime, Inc., v. United States,
supra). This does not appear to be true in this case, although
we cannot conclusively determine this to be so on the basis of
the documents in the file.
HOLDING:
(1) The untimely voluntary reliquidation of an entry, under
19 U.S.C. 1501, is voided when timely protested under 19 U.S.C.
1514.
(2) The earlier untimely voluntary reliquidation of the
same entry referred to in ISSUE (1) is not voided when untimely
protested under 19 U.S.C. 1514.
(3) The effect on the protest under consideration of the
holdings in ISSUES (1) and (2) is that the earlier untimely
voluntary reliquidation is the final protestable action by
Customs and, because no timely protest was filed as to this
reliquidation, neither its legality nor its correctness may be
disturbed.
The protest under consideration is granted in that the
May 12, 1989, reliquidation is voided and denied in that the
February 13, 1987, reliquidation is not voided. The February 13,
1987, reliquidation is Customs final action on this entry and,
because it was not timely protested, may not be disturbed
administratively.
Sincerely,
John Durant, Director
Commercial Rulings Division