B-150854, MAY 3, 1967

B-150854, MAY 3, 1967

TO MR. JAMES J. MORRISON:

YOUR LETTER OF MARCH 28, 1967, REFERS TO OUR DECISION OF APRIL 11, 1963, B-150854, TO LAWRENCE AND TUTTLE, 351 CALIFORNIA STREET, SAN FRANCISCO 4, CALIFORNIA.

THAT DECISION CONCERNED A CLAIM FILED ON BEHALF OF VAN WATERS AND ROGERS, INC., FOR EXCESS CUSTOMS DUTIES PAID BY CUSTOMHOUSE BROKER ANTHONY B. BOWERS ON ENTRIES FILED BY HIM AS IMPORTER OF RECORD FOR THE ACCOUNT OF VAN WATERS AND ROGERS, INC. NO OWNER'S DECLARATIONS WERE FILED IN CONNECTION WITH SUCH ENTRIES. ALSO, WHEN THE CLAIM WAS FILED THE CUSTOMHOUSE BROKER, MR. BOWERS, WAS DECEASED AND LETTERS OF ADMINISTRATION ON HIS ESTATE HAD NOT BEEN ISSUED. THE CLAIM WAS FILED ON BEHALF OF VAN WATERS AND ROGERS, INC., AS ULTIMATE CONSIGNEE AND RIGHTFUL OWNER OF THE MERCHANDISE.

THE CLAIM WAS DISALLOWED FOR THE REASON THAT SINCE NO OWNER'S DECLARATION HAD BEEN FILED IN CONNECTION WITH THE ENTRIES INVOLVED, MR. BOWERS, AS THE NOMINAL CONSIGNEE, WOULD BE ENTITLED TO THE REFUND, AND UPON HIS DEATH THE ADMINISTRATOR OR EXECUTOR OF HIS ESTATE WOULD BE SO ENTITLED, RATHER THAN THE ULTIMATE CONSIGNEE, VAN WATERS AND ROGERS, INC.

YOU STATE THAT IT MAY BE OBSERVED FROM OUR DECISION OF APRIL 11, 1963, THAT REFUNDS DUE MR. BOWERS FOR THE ACCOUNT OF VAN WATERS AND ROGERS, INC., WOULD BE REFUNDED BY THE COLLECTOR OF CUSTOMS TO THE DULY AUTHORIZED ADMINISTRATOR OF THE ESTATE OF MR. BOWERS.

YOU ADVISE THAT ACTING ON BEHALF OF LAWRENCE AND TUTTLE, AND VAN WATERS AND ROGERS, INC., YOU ARE CONTEMPLATING OPENING THE ESTATE OF MR. BOWERS, AS A CREDITOR, FOR THE PURPOSE OF BEING AUTHORIZED TO COLLECT AND RECEIVE THE REFUNDS DUE. HOWEVER, PRIOR TO GOING TO SUCH EXPENSE, YOU REQUEST REAFFIRMATION FROM US THAT UPON PRESENTATION OF THE PROPER CREDENTIALS AS THE DULY AUTHORIZED REPRESENTATIVE OF MR. BOWERS (ESTATE), THAT SUCH EXCESS DUTIES WOULD BE REFUNDED. YOU STATE THAT YOU WANT TO BE SURE THAT NO LAPSE OF TIME WOULD INTERFERE WITH THE REFUND OF THESE MONIES.

IN OUR DECISION OF APRIL 11, 1963, WE STATED, IN PERTINENT PART, THAT:

"IF PURSUANT TO PERTINENT STATE LAW EITHER A PUBLIC ADMINISTRATOR OR YOUR CLIENT, AS A CREDITOR, OBTAINS LETTERS OF ADMINISTRATION IN CONNECTION WITH MR. BOWERS' ESTATE, THE COLLECTOR OF CUSTOMS FOR NEW ORLEANS WOULD, NO DOUBT, REFUND THE EXCESS CUSTOMS DUTIES UPON RECEIPT OF A CLAIM FROM THE PARTY OBTAINING SUCH LETTERS. HOWEVER, PAYMENT WOULD BE LIMITED TO $6,910.76, SINCE THE RECORD DISCLOSES THAT INCREASED DUTIES IN THE AMOUNT OF $2,755.59 DUE THE UNITED STATES FROM MR. BOWERS (IN CONNECTION WITH ENTRIES MADE BY MR. BOWERS FOR OTHER IMPORTERS) WERE SET OFF AGAINST THE REFUND DUE HIM UNDER ONE OF THE ENTRIES (ENTRY NO. 5688) INVOLVED IN THIS CASE BY THE COLLECTOR OF CUSTOMS, NEW ORLEANS. THIS ACTION REDUCED THE AMOUNT DUE MR. BOWERS' ESTATE IN CONNECTION WITH THE ENTRIES INVOLVED HERE FROM $9,666.35 TO $6,910.76.'

YOU WILL NOTE FROM THE QUOTED LANGUAGE THAT WE INDICATED THAT THE COLLECTOR OF CUSTOMS FOR NEW ORLEANS "WOULD, NO DOUBT, REFUND THE EXCESS CUSTOMS DUTIES," IF THE REQUIREMENTS STATED WERE MET. WE ARE NOT AWARE OF ANY REASON WHY THE LAPSE OF TIME WOULD ALTER THE CONCLUSION EXPRESSED IN THE PORTION OF THE DECISION QUOTED ABOVE. HOWEVER, PRIOR TO TAKING ACTION WITH RESPECT TO OBTAINING LETTERS OF ADMINISTRATION WE WOULD SUGGEST THAT YOU INQUIRE OF THE COLLECTOR OF CUSTOMS FOR NEW ORLEANS WHETHER THERE ARE ANY CHANGED CIRCUMSTANCES SINCE ISSUANCE OF OUR DECISION IN THE MATTER.