B-5579, AUGUST 31, 1939, 19 COMP. GEN. 309

B-5579: Aug 31, 1939

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CUSTOMS SERVICE - DUTIES - REFUNDS - CONSIGNEE VERSUS ACTUAL OWNER WHERE MERCHANDISE IS IMPORTED IN THE NAME OF A DESIGNATED CONSIGNEE. NO DECLARATION OF THE OWNER IS PRODUCED IN ACCORDANCE WITH THE APPLICABLE ADMINISTRATIVE REGULATIONS. SAID CONSIGNEE IS TO BE REGARDED AS THE OWNER FOR PURPOSES OF REFUNDING EXCESS DUTIES PAID. NOTWITHSTANDING THE CONSIGNEE DECLARED AT THE TIME OF ENTRY THAT IT WAS NOT THE ACTUAL OWNER BUT WAS ACTING AS CUSTOMS BROKER. WHEREIN REQUEST IS MADE FOR FURTHER CONSIDERATION OF YOUR CLAIM FOR THE AMOUNT OF TREASURY CHECK NO. 11. WHEN THE MERCHANDISE UPON WHICH THE DUTIES IN QUESTION WERE PAID WAS IMPORTED INTO THE UNITED STATES THE A. WAS NAMED AS CONSIGNEE. THAT YOUR COMPANY WAS THE REAL OWNER OF THE GOODS AND THAT A.

B-5579, AUGUST 31, 1939, 19 COMP. GEN. 309

CUSTOMS SERVICE - DUTIES - REFUNDS - CONSIGNEE VERSUS ACTUAL OWNER WHERE MERCHANDISE IS IMPORTED IN THE NAME OF A DESIGNATED CONSIGNEE, AND NO DECLARATION OF THE OWNER IS PRODUCED IN ACCORDANCE WITH THE APPLICABLE ADMINISTRATIVE REGULATIONS, SAID CONSIGNEE IS TO BE REGARDED AS THE OWNER FOR PURPOSES OF REFUNDING EXCESS DUTIES PAID, NOTWITHSTANDING THE CONSIGNEE DECLARED AT THE TIME OF ENTRY THAT IT WAS NOT THE ACTUAL OWNER BUT WAS ACTING AS CUSTOMS BROKER.

COMPTROLLER GENERAL BROWN TO ROSA YO CIGAR CO., AUGUST 31, 1939:

THERE HAS BEEN CONSIDERED YOUR LETTER OF MAY 4, 1939, WHEREIN REQUEST IS MADE FOR FURTHER CONSIDERATION OF YOUR CLAIM FOR THE AMOUNT OF TREASURY CHECK NO. 11,705 FOR $36, DRAWN PAYABLE TO THE ORDER OF A. C. REMPERT AND CO., WHICH CHECK REPRESENTS A REFUND OF EXCESSIVE CUSTOMS DUTIES PAID ON MERCHANDISE COVERED BY WAREHOUSE ENTRY NO. 4281 OF APRIL 20, 1931.

WHEN THE MERCHANDISE UPON WHICH THE DUTIES IN QUESTION WERE PAID WAS IMPORTED INTO THE UNITED STATES THE A. C. REMPERT AND CO. WAS NAMED AS CONSIGNEE. YOU ASSERT, HOWEVER, THAT YOUR COMPANY WAS THE REAL OWNER OF THE GOODS AND THAT A. C. REMPERT AND CO. WAS MERELY A NOMINAL CONSIGNEE ACTING AS YOUR CUSTOMS BROKER IN CLEARING THE SHIPMENT THROUGH THE BUREAU OF CUSTOMS.

SECTIONS 483 (1) AND 485 (D) OF THE TARIFF ACT OF 1930, WHICH WERE IN EFFECT AT THE TIME THIS SHIPMENT WAS MADE, PROVIDED IN PERTINENT PART AS FOLLOWS:

SEC. 483. CONSIGNEE AS OWNER OF MERCHANDISE.

FOR THE PURPOSES OF THIS TITLE---

(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.

SEC. 485. DECLARATION.

(D) 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. ITALICS SUPPLIED.)

WHERE MERCHANDISE IS IMPORTED IN THE NAME OF A DESIGNATED CONSIGNEE AND NO DECLARATION OF THE OWNER IS PRODUCED, SAID CONSIGNEE IS TO BE REGARDED AS THE OWNER BOTH FOR PURPOSES OF ADDITIONAL DUTY ASSESSMENTS AND REFUND OF EXCESS DUTIES PAID. VALENTINE N. MARGINNIS V. UNITED STATES, 74 CT. CLS. 668. NO OWNER'S DECLARATION HAVING BEEN BEEN FILED IN THE PRESENT CASE THIS RULE APPEARS TO BE FOR APPLICATION HERE. WHILE IT APPEARS THAT THE CONSIGNEE, A. C. REMPERT AND CO., DECLARED AT THE TIME OF ENTRY THAT IT WAS NOT THE ACTUAL OWNER BUT WAS ACTING AS BROKER FOR THE ROSA YO CIGAR CO., SECTION 485 (D) NOT ONLY MAKES PROVISION FOR THE MAKING OF SUCH A DECLARATION BY THE NOMINAL CONSIGNEE BUT IN ADDITION PROVIDES FOR THE FURNISHING OF AN OWNER'S DECLARATION. THAT THE FILING OF THIS LATTER DOCUMENT IS A CONDITION PRECEDENT TO PAYMENT OF ANY REFUND TO OTHER THAN THE NOMINAL CONSIGNEE IS RECOGNIZED IN THE CUSTOMS REGULATIONS, PROMULGATED PURSUANT TO THE TARIFF ACT OF 1930, WHEREIN IT IS PROVIDED ( ARTICLE 1178 (C) AND (E) ( THAT---

(C) IF THE IMPORTER OF RECORD IS A NOMINAL CONSIGNEE AND NO OWNER'S DECLARATION, CUSTOMS FORM 3347, IS FILED WITHIN 90 DAYS, THE NOTICE OF REFUND SHALL BE MADE IN THE NAME OF SUCH NOMINAL CONSIGNEE.

(E) REFUND OF SUCH EXCESSIVE DUTIES SHALL BE MADE BY COLLECTORS OF CUSTOMS 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 ULTIMATE CONSIGNEE OR ACTUAL OWNER WHEN SUBSTITUTED FOR THE IMPORTER OF RECORD IN ACCORDANCE WITH SECTION 485 (D) OF THE TARIFF ACT. * * *

IN VIEW OF THE REQUIREMENTS OF THE LAW AS ABOVE SET FORTH THE DISALLOWANCE OF YOUR CLAIM IS SUSTAINED.