LIQ-9-01-CO:R:C:E 224652 AJS

Mr. William Green
District Director of Customs
U.S. Customs Service
P.O. Box 17423
Washington, D.C. 20041

RE: Refund of duties prior to liquidation due to clerical error; 19 U.S.C. 1520(a)(4); 19 CFR 173.4a; 19 CFR 173.4; 19 U.S.C. 1520(c)(1); "clerical error"; "mistake of fact"; "inadvertence".

Dear Mr. Green:

This is in reply to your Internal Advice request of April 14, 1993, concerning refunds on formal entries prior to liquidation.

FACTS:

Your request consists of three example transactions for which you seek internal advice. Example 1 consists of an entry in which the vendor made an error when preparing export invoices by using the wrong unit value. A purchase order was in place with the correct unit value. The shipment arrives at port with entry documents accompanying the freight. Entry was made using documents received and duty was paid. The entry is liquidated. Within one month after liquidation, the importer discovers that the invoice received is not correct as to the purchase price.

Example 2 consists of a shipment originating in Indonesia by vessel. At Singapore, the shipment is placed on a plane for destination. On arrival in New York, the freight forwarder makes an immediate transportation (I.T.) entry to Washington, but mistakenly uses Singapore as the exporting country. The bill of lading clearly indicated that the goods were exported from Indonesia for shipment to Washington. The merchandise is eligible for duty-free treatment under the Generalized System of Preferences (GSP). The broker made entry based on the information provided, not detecting the

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error on the I.T. entry. The importer advised broker of the error and broker requested, before liquidation of the entry, that Customs refund duties upon liquidation.

Example 3 involves a situation in which a document needed to claim duty-free entry is not included in the original entry package. In this case, the importer submits entries as dutiable even though the import specialists had previously accepted an audit report which showed that the country of origin was a GSP country. The importer was requested to enter the merchandise as GSP if it qualifies, and the import specialist would review later and request the documentation if necessary.

Our response is essentially limited to the applicability of 19 U.S.C. 1520(a)(4) inasmuch as your request is primarily concerned with this issue.

ISSUE:

Whether the subject entries, prior to liquidation, are entitled to a refund of excess duties, fees, charges or exactions due to clerical error.

LAW AND ANALYSIS:

19 CFR 173.4a provides that pursuant to section 520(a)(4), Tariff Act of 1930, as amended (19 U.S.C. 1520 (a)(4)), the district director may prior to liquidation of an entry, take appropriate action to correct a clerical error that resulted in the deposit or payment of excess duties, fees, charges, or exactions. Your request specifically asks whether the language in this provision is narrower than the language in 19 CFR 173.4. The answer is yes. Section 173.4a is expressly limited to the correction of clerical errors prior to liquidation. It does not also allow for the correction of a mistake of fact or other inadvertence not amounting to an error in the construction of a law within one year of liquidation as does section 173.4.

A "clerical error" has been stated by the Courts to be "a mistake made by a clerk or other subordinate, upon whom devolves no duty to exercise judgement, in writing or copying the figures or in exercising his intention." See PPG Industries, Inc., v. United States, 7 CIT 118, 124 (1984)., and cases cited therein. In addition, T.D. 54848 provides, "[c]lerical error occurs when a person intends to do one thing but does something else . . . It includes mistakes in arithmetic and the failure to associate all the papers in a record under consideration." In Ruth F. Sturm's Customs Law & Administration (3rd ed.), it is stated that "[c]lerical

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error has been found where mistakes were made in copying or typing figures or where figures have been transposed", and a number of Customs Court decisions are cited for this proposition (section 9.4, at pages 5 and 6).

In Example 1, the vendor made an error in preparing an export invoice by using the wrong unit values even though a purchase order was present with the correct unit values. This type of error is not a clerical error correctable pursuant to section 1520(a)(4). The vendor did not intend to write down the correct price and then mistakenly write down the incorrect price. Rather, the vendor mistakenly used an incorrect value to obtain the correct price.

In Example 2, an incorrect country of origin (i.e., Singapore) is used by the freight forwarder when the correct country of origin (i.e., Indonesia) is available on the bill of lading. This type of error is also not a clerical error correctable pursuant to section 1520(a)(4). The freight forwarder did not intend to write down Indonesia and instead write down Singapore. Rather, the forwarder incorrectly used the documentation present to ascertain the country of origin. 19 U.S.C. 1520(c)(1) allows for the correction of a mistake of fact or other inadvertence not amounting to an error in the construction of a law within one year after the date of liquidation. A mistake of fact has been defined as "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exists, in reality does not exist. C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust. Ct. 17, 22, C.D. 4327, 336 F. Supp. 1395, 1399 (1972), aff'd 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974). Inadvertence is a somewhat broader term, and has been defined as "an oversight or involuntary accident, or the result of inattention or carelessness, and even as a type of mistake." Id. Each of the above two examples would appear to be a type of inadvertence due to inattention or carelessness which should be addressed under section 1520(c)(1) instead of as clerical error under section 1520(a)(4). In Example 3, a document needed to support a claim for duty-free treatment was not included in an entry which was submitted as dutiable. The importer did not want to enter the merchandise as duty-free until they obtained proper documentation. Once again, this is not a clerical error correctable pursuant to section 1520(a)(4). The importer did not intend to enter the merchandise as duty-free and then by error enter it as dutiable. The importer made a conscious decision to enter as dutiable until they received the proper documentation. This would appear to be some type of mistake -4-

of fact in that the importer entered the merchandise as dutiable because of the unproven fact of the merchandise's duty-free status. This type of error could also be remedied under section 1520(c)(1).

In general, a clerical error, mistake of fact or other inadvertence not amounting to an error in the construction of a law should be handled in the following manner. In instances where the district agrees that an excess deposit is made due to a clerical error, then that excess may be refunded before liquidation pursuant to section 1520(a)(4) and the entry liquidated as entered taking into account the refund. In instances where there are any other types of errors which are agreed to by the district and importer, then the amount deposited in error should be refunded upon liquidation. In cases where the district does not agree with the alleged error, then the entry should be liquidated as determined by the district and the importer must act under 19 U.S.C. 1514 or 1520(c)(1), as appropriate.

Your request specifically asks whether the instructions outlined in Customs Directive (CD) 3710-01 (March 27, 1985) cover all the transactions enumerated in 19 CFR 173.4(b). The answer is no. These instructions are limited to unliquidated entries and clerical errors. Inasmuch as section 173.4(b) covers liquidated entries and other Customs transactions which also involve a mistake of fact or other inadvertence, these instructions cannot apply.

This request also specifically asks whether all authentic clerical errors enumerated in section 173.4(b) are also included in the provisions of section 173.4a and CD 3710-01. The answer is yes. If an error is a clerical error under section 173.4(b) it would also be a clerical error under 173.4a and CD 3710-01. The major difference in these two provisions is the time at which the correction of the clerical error may take place.

HOLDING:

The subject entries do not involve clerical errors which are entitled to a refund of excess duties, fees, charges or exactions prior to liquidation pursuant to 19 U.S.C. 1520(a)(4).


Sincerely,


John Durant, Director