VAL CO:R:C:V 544684 TLL/ML
Richard H. Abbey, Esq.
  2121 K Street, N.W.
  Washington, D.C. 20037
  
  RE:   Dutiability of Payments Made to Related Overseas Employees 
   and The Necessity of Reporting The Payments to Customs
  
  Dear Mr. Abbey:
  
      This is in response to your letter dated March 20, 1991, and
  pursuant to a meeting on August 1, 1991, held at Headquarters,
  attended by you and members of my staff. You request a ruling
  regarding the dutiability of certain monthly payments made by 
  your client, Brenco Apparel Inc. of Dallas, Texas, (hereinafter
  referred to as the "importer"), to its employees in New Delhi,
  India, (hereinafter referred to as the "employees").  You further
  inquire as to the necessity of reporting these payments to 
  Customs.  We regret the delay in responding.
  
  FACTS:
  
      You state that the importer is a wholly owned subsidiary of
  Brenner International, Inc., a publicly traded Delaware
  corporation, involved in the manufacture of ladies' wearing
  apparel. The importer is the importing arm of Brenner.  The 
  importer has hired a manager, who in turn has hired four other
  employees in India, all of whom are engaged in activities which
  you state are normally associated with a "buying agent", yet no
  written agency agreement exists.  On behalf of the importer, the
  overseas manager and the employees will identify and select
  manufacturers, obtain prices on samples, survey the market for 
  new styles, assist in the negotiation of prices, execute purchase
  orders, inspect the finished goods and sign inspection
  certificates. The staff overseas works exclusively for the 
  importer and it neither manufactures nor buys and sells 
  merchandise independently. Further, purchase orders are executed
  and letters of credit for merchandise are opened between the
  importer and the manufacturer of the merchandise.
  
   We note that your letter does not state that the 
  manufacturer is the seller of the exported merchandise.
  Nonetheless, we have assumed for purposes of this response that 
  the manufacturer is the seller of the exported merchandise. You
  have stated that none of the parties (manager and employees
  
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  included) are related to the manufacturer.  Additionally, no
  payment, direct or indirect, is made by the manager or through
  the manager to a manufacturer. (Please note, we are assuming 
  that this last sentence means that none of the payments made to 
  the manager/agent or its employees inures to the benefit of the
  manufacturer).
  
      You state that the importer transfers money monthly to the
  manager which is used to pay all of the overseas employees'
  salaries, the rent, telephone bill and fax bill. Counsel stated
  that the money is not linked in any way to specific, 
  identifiable importations by the importer.
  
  ISSUE:
  
      Whether payments made by the importer to its employees are a
  dutiable part of transaction value.
  
  LAW AND ANALYSIS:
  
      The transactions described by counsel are prospective, 
  current and completed transactions as found in 177.1(a)(1) and
  (2), Customs Regulations (19 CFR 177.1(a)(1) and (2)). Current 
  or completed transactions will normally be resolved by the 
  Customs Service office involved in that transaction.  Therefore, 
  we will respond to counsel's request as it pertains to pending
  transactions in conformance with the facts as stated above.
  
      For purposes of our response, we are assuming that 
  transaction value, the preferred method of appraisement is
  appropriate, given counsel's statement that the buyer and seller 
  of the merchandise are unrelated as that term is defined in 
  section 402(g) of the Tariff Act of 1930, as amended by the Trade
  Agreements Act of 1979 (TAA; 19 U.S.C. 1401(g)). Transaction 
  value is defined in section 402(b) of the TAA, as "the price
  actually paid or payable for the merchandise when sold for
  exportation to the United States", plus certain enumerated
  additions. The term "price actually paid or payable" is defined 
  in section 402(b)(A) of the TAA as:
  
        ...the total payment (whether direct or indirect...) 
        made, or to be made, for imported merchandise by the 
        buyer to, or for the benefit of, the seller.
  
      It has consistently been the position of the Customs Service
  that all monies paid to the seller or a party related to the 
  seller are part of the "price actually paid or payable" for the
  imported merchandise. (See, TAA #6) This position was reaffirmed 
  by the court in Generra Sportswear Company v. United States, 905
  F.2d 377 (Fed.Cir. 1990). Inasmuch as under the facts presented
  these payments are not to the seller or a party related thereto, 
  
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  they are not part of the price actually paid or payable and under
  these circumstances are not part of transaction value.
  
      In addition, it should be noted that the stated services to 
  be performed by the employees appear to be typical of those
  performed by a buying agent and consequently, otherwise
  nondutiable. (See, New Trends v. United States, 10 CIT 637,645 
  F. Supp. 957 (1986)) Counsel stated that the invoices (or 
  purchases orders) will be opened between the importer and the
  manufacturer, consistent with HRL 542141 (TAA #7) dated September
  29, 1980. Both factors support our finding the payments made to 
  the employees would not be added to the "price actually paid or
  payable" under 402(b)(1)(B). See, 544396, dated May 14, 1990.  In
  sum, these payments are not part of the transaction value of the
  merchandise.
  
      Finally, under the factual circumstances presented we 
  believe it is appropriate to allow the concerned field officer to
  decide the question as to whether these payments should be 
  reported to Customs.
  
  HOLDING:
  
      Under the circumstances, payments by the buyer to its 
  employees abroad are not part of transeetion value.
  
                                 Sincerely,
  
                                 John Durant, Director
                                 Commercial Rulings Division