RR:IT:VA 546111 KCC

Port Director
U.S. Customs Service
P.O. Box 619050
Dallas/Fort Worth Airport, Texas 75261-0950

RE: Application for Further Review of Protest 5501-95-100293; transaction value; the price actually paid or payable; 402(b)(4)(A)and (b)(3); 19 CFR 152.103(i); transportation charge; U.S. duty; HRLs 544538, 543827, 542467

Dear Port Director:

This is in regard to Application for Further Review of Protest 5501-95-100293 concerning the proper method of determining transaction value for footwear imported by I.C.R. Inc. (the importer). The footwear was appraised pursuant to transaction value, 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA), codified at 19 U.S.C. 1401a(b).

FACTS:

The merchandise at issue is two entries of footwear which were appraised pursuant to transaction value, 402(b) of the TAA, based on the invoices provided at the time of entry. These invoices indicated that the shipment terms were "F.O.B. DALLAS." Thus, you liquidated the entries on the total invoice price of Invoice A at $18,052.50 and Invoice B at $74,806.00. The total invoice prices included amounts for "EX FACTORY", "TRANSPORT", "BROKERAGE", "INSURANCE" and "ESTIMATE US DUTY."

In a protest, timely filed on June 22, 1995, the protestant presented two invoices for the footwear showing the terms of sale to be "CIF AIRPORT DALLAS." Both sets of invoices are identical except for the terms of sale. The importer contends that the price actually paid or payable for the footwear is the price listed on the invoices as "EX FACTORY AMOUNT" or $15,219.00 for Invoice A and $63,446.00 for Invoice B

It is now your position that appraised value for the footwear is $15,396.00 for Invoice A and $65,035.00 for Invoice B. The difference between your position and that of the protestant lies in the figures you used for actual transportation cost and actual U.S. duty. You obtained two airway bills for the entries showing the actual transportation cost associated with the entries. For Invoice A, the original airway bill from Lufthansa showed a charge of $589.00 paid in Italian Lire. You used a conversion rate of .000606 from the date of export. For Invoice B, the original airway bill from Federal Express showed a charge of $2,077.63. These airway bills also indicate that shipments were made "DELIVERED DUTY PAID AIRPORT OF DESTINATION." You calculated the actual U.S. Duty for Invoice A as $1568.95 and for Invoice B as $6,627.06. Additionally, you note that both invoices are between related parties which the importer did not indicate on Customs Form (CF) 7501.

ISSUE:

Should a deduction be made for the actual cost of transportation and U.S. duty charges?

LAW AND ANALYSIS:

The preferred method of appraisement is transaction value which is defined by 402(b)(1) of the TAA (19 U.S.C. 1401a(b)) as "the price actually paid or payable for the merchandise when sold for exportation to the United States..." plus certain additions specified in 402(b)(1) (A) through (E). The parties are related, therefore pursuant to 402(b)(2)(B) of the TAA, transaction value is acceptable only if an examination of the circumstances of the sale indicates that the relationship between the importer and foreign manufacturers does not influence the price actually paid or payable or if the transaction value of imported merchandise closely approximates the transaction value of identical or similar merchandise in sales to unrelated buyers in the U.S. or the deductive or computed value for identical or similar merchandise. This decision does not address the acceptability of transaction value.

The term "price actually paid or payable" is defined in 402(b)(4)(A) of the TAA as:

...the total payment (whether direct or indirect, and exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise from the country of exportation to the place of importation in the United States) made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller.

As regards costs that are incurred after the merchandise has been imported, 402(b)(3) of the TAA states that:

The transaction value of imported merchandise does not include any of the following, if identified separately from the price actually paid or payable and from any cost or other item referred to in paragraph (1):

(B) The customs duties and other Federal taxes currently payable on the imported merchandise by reason of its importation, and any Federal excise tax on, or measured by the value of, such merchandise for which vendors in the United States are ordinarily liable.

See also, 152.103(i), Customs Regulations (19 CFR 152.103(i). The above cited statutory provision clearly states that the transaction value of imported merchandise does not include any cost incurred for customs duties of the imported merchandise that is identified separately from the price actually paid or payable.

Transportation costs pertaining to the international movement of merchandise from the country of exportation, to the extent included in the price actually paid or payable, are to be excluded from the total payment made for imported merchandise appraised under transaction value. The costs associated with transportation and U.S. duty are not the estimated costs, but the actual costs paid to Customs and the freight forwarder, transport company, etc.

In Headquarters Ruling Letter (HRL) 544538, issued December 17, 1992, Customs acknowledged that pursuant to 402(b)(4)(A) the cost of international transportation is to be excluded from the price actually paid or payable for imported merchandise. However, Customs explained that in determining the cost of the international transportation or freight, it always looked to documentation from the freight company, as opposed to the documentation between the buyer and the seller which often contains estimated transportation costs or charges. In essence, Customs requires documentation from the freight company because the actual cost, and not the estimated charges, for the freight is the amount that Customs excludes from the price actually paid or payable. See also HRL 543827, issued March 9, 1987, in which Customs determined that the proper deduction from the price actually paid or payable for marine insurance was the amount actually paid to the insurance company by the seller, as opposed to the amount paid by the related importer/buyer; and HRL 542467 dated August 13, 1981.

The actual U.S. duties, not the estimated duties, are excluded from the price actually paid or payable. Documentation establishing the actual transportation costs to be excluded was acquired by Customs in the form of the original airway bills from Lufthansa and Federal Express for the entries at issue. The original airway bills show the actual cost for transportation which is different from the transportation costs listed on the footwear invoices. Therefore, the actual cost for transportation are excluded from the price actually paid or payable in determining transaction value.

HOLDING:

The price actually paid or payable for the imported merchandise does not include the actual cost for transportation and U.S. duties.

The protest should be GRANTED IN PART as set forth above. In accordance with Section 3A(11)(b) of Customs Directive 099 3550-065 dated August 4, 1993, Subject: Revised Protest Directive, this decision, together with the Customs Form 19, should be mailed by your office to the protestant no later than 60 days from the date of this letter. Any reliquidation of the entry in accordance with the decision must be accomplished prior to mailing the decision. Sixty days from the date of the decision the Office of Regulations and Rulings will take steps to make the decision available to customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels.

Sincerely,


Acting Director
International Trade Compliance
Division