B-130992, MAY 1, 1957

B-130992, MAY 1, 1957

TO GREENFIELD AND WEISS, COUNSELORS AT LAW:

YOUR LETTER OF FEBRUARY 15, 1957, REQUESTS RECONSIDERATION OF OUR SETTLEMENT OF APRIL 5, 1956, WHICH DISALLOWED YOUR CLIENT'S (SILBERSTEIN- NEULANDER CORPORATION-S) CLAIM FOR THE PROCEEDS OF THE COURT CUSTOMS REFUND CHECKS LISTED BELOW:

CHECK NO. DATE AMOUNT PAYEE 11,892,629 9-28-53 $4,445.25 A. J. BRACHER 12,127,084 11-25-53 5,228.25 A. J. BRACHER 13,000,355 2-19-54 3,504.75 A. J. BRACHER CO. INC. 26,931,512 9-12-55 1,112.30 A. J. BRACHER CO. INC.

IN ADDITION TO THE CHECKS REFERRED TO ABOVE, WE ALSO HAVE A CUSTOMS REFUND CHECK NUMBERED 11,903,840 ISSUED SEPTEMBER 30, 1953, IN THE AMOUNT OF $639 PAYABLE TO THE ORDER OF A. J. BRACHER CO., IN CONNECTION WITH THE ENTRY NO. 47676 OF JULY 8, 1930.

THE FIRST FOUR CHECKS REFERRED TO ABOVE REPRESENT A REFUND OF EXCESSIVE CUSTOMS DUTIES PAID ON MERCHANDISE IMPORTED UNDER THE FOLLOWING ENTRIES:

TABLE ENTRY NO. DATE OF ENTRY AMT. OF REFUND ENTERED BY

29601 4-11-36 $218.75 A. J. BRACHER CO. INC.

29602 4-11-361976.25) A. J. BRACHER CO. INC.

1112.30)

33349 5-18-36 1309.75 A. J. BRACHER CO. INC.

77221 6-15-37 4445.25 A. J. BRACHER

871140 5-14-37 5228.25 A. J. BRACHER

THE CLAIMANT ADVISED IN PRIOR CORRESPONDENCE THAT THE PAYEE, A. J. BRACHER CO., INC., WAS DISSOLVED IN 1942 AND THAT THE OTHER PAYEE, A. J. BRACHER% DIED MANY YEARS AGO. IT FURTHER ADVISED THAT NEITHER A CORPORATE REPRESENTATIVE NOR AN EXECUTOR OR ADMINISTRATOR OF THE INDIVIDUAL'S ESTATE COULD BE LOCATED AND THAT SILBERSTEIN-NEULANDER CORPORATION WAS THE ULTIMATE CONSIGNEE AND ACTUAL OWNER OF THE MERCHANDISE. PAYMENT OF THE CLAIM WAS DISALLOWED BY US FOR THE REASON THAT NO OWNER'S DECLARATIONS HAD BEEN FILED IN CONNECTION WITH SUCH ENTRIES AND, HENCE, UNDER APPLICABLE CUSTOMS LAWS AND REGULATIONS YOUR CLIENT WAS NOT ENTITLED TO THE REFUND.

ENCLOSED WITH YOUR LETTER ARE PHOTOSTATIC COPIES OF VARIOUS ENTRIES (ENTRY NOS. 29601, 29602, 33349 AND 77221) AND PROOFS. YOU STATE THESE SHOW THAT ALTHOUGH SUCH ENTRIES WERE IN THE NAME OF A. J. BRACHER OR A. J. BRACHER CO., INC., THE DECLARATION FORMS DISCLOSE CONCLUSIVELY THAT YOUR CLIENT IS ENTITLED TO THE PROCEEDS OF THE FOUR REFUND CHECKS CLAIMED. ALSO, ENCLOSED IS A PHOTOSTATIC COPY OF A DECISION OF THE UNITED STATES CUSTOMS COURT, FIRST DIVISION (SUIT NOS. 834887-G/6429-36, ETC.) DATED MARCH 18, 1953, IN FAVOR OF YOUR CLIENT IN CONNECTION WITH ENTRY NO. 871440 AND OTHERS NOT HERE INVOLVED. YOU SAY THAT IN EACH OF THESE ENTRIES A. J. BRACHER EXECUTED A DECLARATION ON THE WAREHOUSE OR REWAREHOUSE ENTRY FORM IN WHICH THE ULTIMATE CONSIGNEE AND ACTUAL OWNER IS STATED TO BE SILBERSTEIN NEULANDER CORPORATION. YOU STATE THAT SUCH DECLARATIONS WERE EXECUTED PURSUANT TO SECTION 485 (C) OF THE TARIFF ACT OF 1930 (19 U.S.C. 1485 (C) ( AND ASK THAT WE EXAMINE THE PROOFS SUBMITTED BY YOU AND IF OUR DECISION IS IN ACCORDANCE WITH YOUR VIEW THAT WE REISSUE THE CHECKS SO AS TO MAKE THEM PAYABLE TO SILBERSTEIN-NEULANDER CORPORATION AND FORWARD THEM TO YOU.

IN VIEW OF THE DECISION OF THE UNITED STATES CUSTOMS COURT IN SILBERSTEIN -NEULANDER CORPORATION V. UNITED STATES, SUIT NO. 834887-G) 6429-36, ETC., DATED MARCH 18, 1953, IN CONNECTION WITH ENTRY NO. 871440, INSTRUCTIONS ARE BEING ISSUED TODAY TO OUR CLAIMS DIVISION TO TRANSMIT TO THE SILBERSTEIN-NEULANDER CORPORATION, IN YOUR CARE, THE PROCEEDS OF CHECK NO. 12,127,084 DATED NOVEMBER 25, 1953, IN THE AMOUNT OF $5,228.25.

CONCERNING THE REFUNDS AS TO THE OTHER ENTRIES SECTION 1483, TITLE 19, U.S.C. PROVIDES, IN PART, AS FOLLOWS:

"FOR THE PURPOSES OF THIS SUBTITLE---

"/1) ALL MERCHANDISE IMPORTED INTO THE UNITED STATES SHALL BE HELD TO BE THE PROPERTY OF THE PERSON TO WHOM THE SAME IS CONSIGNED; AND THE HOLDER OF A BILL OF LADING DULY INDORSED BY THE CONSIGNEE THEREIN NAMED, OR, IF CONSIGNED TO ORDER, BY THE CONSIGNOR, SHALL BE DEEMED THE CONSIGNEE THEREOF. * * *" SECTION 1485 OF THE SAME TITLE PROVIDES, IN PART:

"EVERY CONSIGNEE MAKING AN ENTRY UNDER THE PROVISIONS OF SECTION 1484 OF THIS TITLE SHALL MAKE AND FILE THEREWITH, IN A FORM TO BE PRESCRIBED BY THE SECRETARY OF THE TREASURY, A DECLARATION UNDER OATH, STATING---

"/C) AGENTS.

"IN THE EVENT THAT AN ENTRY IS MADE BY AN AGENT UNDER THE PROVISIONS OF SECTION 1484 OF THIS TITLE AND SUCH AGENT IS NOT IN POSSESSION OF SUCH DECLARATION OF THE CONSIGNEE, SUCH AGENT SHALL GIVE A BOND TO PRODUCE SUCH DECLARATION.

"/D) LIABILITY OF CONSIGNEE FOR INCREASED DUTIES.

"A CONSIGNEE SHALL NOT BE LIABLE FOR ANY ADDITIONAL OR INCREASED DUTIES IF (1) HE DECLARES AT THE TIME OF ENTRY THAT HE IS NOT THE ACTUAL OWNER OF THE MERCHANDISE, (2) HE FURNISHES THE NAME AND ADDRESS OF SUCH OWNER, AND (3) WITHIN NINETY DAYS FROM THE DATE OF ENTRY HE PRODUCES A DECLARATION OF SUCH OWNER CONDITIONED THAT HE WILL PAY ALL ADDITIONAL AND INCREASED DUTIES, UNDER SUCH REGULATIONS AS THE SECRETARY OF THE TREASURY MAY PRESCRIBE. SUCH OWNER SHALL POSSESS ALL THE RIGHTS OF A CONSIGNEE. * * *

APPLICABLE CUSTOMS REGULATIONS (ARTICLE 1178 (C), CUSTOMS REGULATIONS OF 1931, AS AMENDED BY T.D. 45951 AND T.D. 47052) PROMULGATED PURSUANT TO THE TARIFF ACT OF 1930, AND APPARENTLY IN EFFECT AT THE TIME OF ENTRY, PROVIDED, IN PART, AS FOLLOWS:

"REFUNDS OF SUCH EXCESSIVE DUTIES SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF THE IMPORTER OF RECORD, THAT IS, THE PERSON IN WHOSE NAME THE ENTRY WAS MADE, OR TO THE ORDER OF THE ACTUAL OWNER WHEN SUBSTITUTED FOR THE IMPORTER OF RECORD IN ACCORDANCE WITH SECTION 485 (D) OF THE TARIFF ACT. * * *"

UNDER THE ABOVE-QUOTED LAWS AND REGULATIONS (OR SIMILAR REGULATIONS) IT HAS BEEN HELD THAT WHERE MERCHANDISE IS IMPORTED IN THE NAME OF A NOMINAL CONSIGNEE AND NO OWNER'S DECLARATION IS FILED THE NOMINAL CONSIGNEE IS TO BE REGARDED AS THE OWNER BOTH FOR THE PURPOSE OF ADDITIONAL ASSESSMENTS AND FOR REFUND OF EXCESSIVE DUTIES PAID, EVEN THOUGH THE NOMINAL CONSIGNEE DECLARES IN THE ENTRY THAT ANOTHER IS THE ULTIMATE CONSIGNEE AND ACTUAL OWNER. NEGINNIS, ET AL., EXRS. V. UNITED STATES, 74 C.CLS. 668; BALDWIN, ET AL., V. UNITED STATES, 113 F. 217; UNITED STATES V. VANDIVER, 133 F. 252; AMERICAN SHIPPING CO. V. UNITED STATES, 10 CUST.CT.REPTS. 300 (C.D. 771); 19 COMP. GEN. 309. THE RECORD BEFORE US CONTAINS NO EVIDENCE THAT OWNER'S DECLARATIONS WERE FILED IN CONNECTION WITH THE ENTRIES REFERRED TO IN YOUR LETTER. WE ASSUME THAT IF SUCH DECLARATIONS HAD BEEN FILED, THE BUREAU OF CUSTOMS WOULD HAVE REFUNDED THE MONEY IN QUESTION TO YOUR CLIENT. IT APPEARS, THEREFORE, THAT THE ABOVE REFERRED-TO HOLDING WOULD BE FOR APPLICATION HERE.

HOWEVER, IT APPEARS THAT YOU ARE, IN EFFECT, CONTENDING THAT INASMUCH AS THE DECLARATIONS (ENTRY FORMS) WERE EXECUTED PURSUANT TO SECTION 485/C) OF THE TARIFF ACT OF 1930 (19 U.S.C. 1485 (C) QUOTED ABOVE) NO OWNER'S DECLARATIONS WERE NECESSARY, SINCE A. J. BRACHER AND A. J. BRACHER ., INC., THUS CONCEDED THAT THEY ACTED AS AGENTS FOR YOUR CLIENT AND HAD NO INTEREST IN THE REFUNDS RATHER THAN AS THE NOMINAL CONSIGNEES.

CUSTOMS REGULATIONS (ARTICLE 295/C), CUSTOMS REGULATIONS OF 1931, AS AMENDED BY T. D. 47052) APPARENTLY IN EFFECT AT THE TIME OF ENTRY, PROVIDED, IN PART, AS TO AGENTS, AS FOLLOWS:

"AN AGENT IS A PERSON WHO MAKES ENTRY IN THE NAME OF ANOTHER AND NOT A NOMINAL CONSIGNEE WHO MAKES ENTRY IN HIS OWN NAME. AN AGENT MUST, THEREFORE, EXECUTE ON THE ENTRY FORM THE DECLARATION APPLICABLE TO THE CONSIGNEE FOR WHOM HE ACTS AS AGENT AND NOT THAT OF THE NOMINAL CONSIGNEE, UNLESS HE IS THE AGENT OF THE NOMINAL CONSIGNEE. THE BOND REQUIRED BY THE ABOVE PROVISION OF LAW SHALL BE ON CUSTOMS FORM 7551 OR OTHER APPLICABLE BOND CONDITIONED FOR THE PRODUCTION OF THE CONSIGNEE'S DECLARATION AND THE DECLARATION PRODUCED IN COMPLIANCE WITH THE BOND SHALL BE ON CUSTOMS FORM 3347A.'

IT IS CLEAR FROM THE EVIDENCE SUBMITTED BY YOU THAT A. J. BRACHER AND A. J. BRACHER CO., INC., MADE THE ENTRIES IN THEIR OWN NAMES AND NOT IN THE NAME OF ANOTHER. THESE ENTRIES ALSO DISCLOSE THAT BOTH A. J. BRACHER AND A. J. BRACHER CO., INC., EXECUTED ON THE ENTRY FORMS THE DECLARATION APPLICABLE TO A NOMINAL CONSIGNEE OR AGENT OF A NOMINAL CONSIGNEE, RATHER THAN THE DECLARATION APPLICABLE TO A CONSIGNEE FOR WHOM THEY ACTED AS AGENT. MOREOVER, THE REGULATIONS IN EFFECT AT THE TIME REQUIRED THE EXECUTION OF FORM 3347A "WHENEVER ENTRY IS MADE BY AN AGENT AS SUCH IN THE NAME OF HIS PRINCIPAL" (SEE T.D. 47052, DATED MAY 12, 1934). IT DOES NOT APPEAR FROM THE RECORD THAT THIS FORM WAS EXECUTED IN CONNECTION WITH ENTRIES IN QUESTION. THUS, ON THE PRESENT RECORD, NEITHER A. J. BRACHER NOR A. J. BRACHER CO., INC., MAY BE CONSIDERED TO HAVE BEEN THE AGENT (UNDER SECTION 485 (C) ( OF YOUR CLIENT IN EXECUTING THESE ENTRY FORMS AND DECLARATIONS, BUT RATHER THEY MUST BE HELD TO HAVE BEEN THE NOMINAL CONSIGNEES. IN OTHER WORDS IT DOES NOT APPEAR FROM THE PRESENT RECORD THAT THE DECLARATIONS ON THE ENTRY FORMS IN QUESTION WERE EXECUTED PURSUANT TO SECTION 485 (C) (19 U.S.C. 1485 (C) ). RATHER, IT APPEARS THAT SUCH DECLARATIONS WERE MADE BY A. J. BRACHER AND A. J. BRACHER CO., INC., IN THEIR OWN NAMES AS NOMINAL CONSIGNEES.

FROM THE FOREGOING IT APPEARS THAT UNDER APPLICABLE CUSTOMS LAWS, CUSTOMS REGULATIONS, AND COURT DECISIONS, A. J. BRACHER AND A. J. BRACHER CO., INC., ARE ENTITLED, AS THE NOMINAL CONSIGNEES, TO THE CUSTOMS REFUND CHECKS IN QUESTION, AND NOT YOUR CLIENT EXCEPT AS TO THE ENTRY INVOLVING THE ABOVE REFERRED-TO COURT JUDGMENT. HENCE, INASMUCH AS A. J. BRACHER IS DECEASED IT APPEARS THAT THE ADMINISTRATOR OR EXECUTOR OF HIS ESTATE WOULD BE ENTITLED TO THE REFUNDS IN CONNECTION WITH THE ENTRIES MADE IN HIS NAME. NOTE IN THAT CONNECTION 19 U.S.C. 1485/F) WHICH READS, IN PART, AS FOLLOWS:

"WHENEVER SUCH MERCHANDISE IS CONSIGNED TO A DECEASED PERSON, OR TO AN INSOLVENT PERSON WHO HAS ASSIGNED THE SAME FOR THE BENEFIT OF HIS CREDITORS, THE EXECUTOR OR ADMINISTRATOR, OR THE ASSIGNEE OF SUCH PERSON OR RECEIVER OR TRUSTEE IN BANKRUPTCY, SHALL BE CONSIDERED AS THE ONSIGNEE;

CONCERNING THE ADMINISTRATION OF A. J. BRACHER'S ESTATE WE DIRECT YOUR ATTENTION TO ARTICLE 8-A OF THE SURROGATES COURT ACT OF NEW YORK (L. 1920, CH. 928, IN EFFECT OCTOBER 1, 1921), PARTICULARLY SECTIONS 136-N AND 136- Z, AS SET FORTH IN CLEVENGER'S PRACTICE MANUAL, 1956 ANNUAL, NEW YORK ANNOTATIONS 1850-1956, CONCERNING THE APPOINTMENT AND AUTHORITY OF PUBLIC ADMINISTRATORS IN THE COUNTIES OF THE CITY OF NEW YORK. ALSO, IN 1954, THEODORE M. WOLKOF, COUNSELOR AT LAW, 20 BROAD STREET, NEW YORK 5, NEW YORK, MADE INQUIRY ALLEGEDLY ON BEHALF OF THE HEIRS OF A. J. BRACHER FOR CUSTOMS REFUNDS CLAIMED TO BE DUE MR. BRACHER OR FIRMS IN WHICH HE HAD AN INTEREST.

AS TO THE REFUND CHECKS PAYABLE TO A. J. BRACHER CO., INC., (A DISSOLVED CORPORATION) WE DIRECT YOUR ATTENTION TO SECTION 29, GENERAL CORPORATION LAW, CONSOLIDATED LAWS SERVICE, NEW YORK, WHICH PROVIDES:

"UPON THE DISSOLUTION OF A CORPORATION FOR ANY CAUSE AND WHETHER VOLUNTARY OR INVOLUNTARY ITS CORPORATE EXISTENCE SHALL CONTINUE FOR THE PURPOSE OF PAYING, SATISFYING AND DISCHARGING ANY EXISTING LIABILITIES OR OBLIGATIONS, COLLECTING AND DISTRIBUTING ITS ASSETS AND DOING ALL OTHER ACTS REQUIRED TO ADJUST AND WIND UP ITS BUSINESS AND AFFAIRS, AND IT MAY SUE AND BE SUED IN ITS CORPORATE NAME. UNLESS OTHER PERSONS SHALL BE DESIGNATED BY LAW OR BY A COURT OF COMPETENT JURISDICTION, THE DIRECTORS SHALL HAVE FULL POWER TO SETTLE ITS AFFAIRS AND TO DISTRIBUTE TO THE PERSONS ENTITLED THERETO THE ASSETS REMAINING AFTER THE PAYMENT OF DEBTS AND NECESSARY EXPENSES. DURING THE PERIOD OF ADJUSTING AND WINDING UP THE BUSINESS AND AFFAIRS OF SUCH CORPORATION, THE DIRECTORS MAY, FROM TIME TO TIME, ELECT OR APPOINT OFFICERS OF THE CORPORATION HAVING THE POWERS AND DUTIES PROVIDED IN THE BYLAWS EXISTING AT THE TIME OF SUCH DISSOLUTION, AND SUCH OTHER POWERS AND DUTIES AS MAY BE CONFERRED UPON THEM BY RESOLUTION OF THE DIRECTORS; AND SUCH OTHER AGENTS, EMPLOYEES, ACCOUNTANTS AND COUNSEL AS IN THE JUDGMENT OF THE DIRECTORS MAY BE REQUIRED. * * *" UNDER SECTION 29, THE A. J. BRACHER CO., INC., EVEN THOUGH DISSOLVED, IS CONSIDERED IN EXISTENCE FOR THE PURPOSE OF PAYING OBLIGATIONS AND COLLECTING DEBTS, UNLESS SOME OTHER PERSON IS DESIGNATED BY LAW OR A COURT TO SETTLE ITS AFFAIRS.

UPON THE PRESENT RECORD THEREFOR, WE MAY NOT PAY THE PROCEEDS OF THE OTHER REFUND CHECKS TO YOUR CLIENT, THE SILBERSTEIN-NEULANDER CORPORATION BECAUSE UNDER APPLICABLE LAWS AND REGULATIONS THAT CORPORATION IS NOT QUALIFIED TO GIVE A GOOD ACQUITTANCE TO THE UNITED STATES.