B-139564, AUG. 11, 1959

B-139564, AUG. 11, 1959

TO STEIN AND SHOSTAK:

THIS REFERS TO LETTER (AND ENCLOSURE) OF YOUR CLIENTS, U.S. WIPING MATERIALS CORP. AND J. ROSENBERG, DATED NOVEMBER 27, 1957, MAKING CLAIM FOR THE PROCEEDS OF CERTAIN CUSTOMS REFUND CHECKS (LISTED BELOW) AND TO YOUR CORRESPONDENCE AND ENCLOSURES IN CONNECTION THEREWITH.

THE CHECKS ARE AS FOLLOWS:

TABLE

CHECK NO. DATE AMOUNT PAYEE 30,101,614 11-28-56 $13,607.58 W. X. HUBER AND CO. 30,121,340 12-11-56 417.00 W. X. HUBER CO.

THESE CHECKS REPRESENT REFUNDS OF EXCESSIVE CUSTOMS DUTIES PAID ON 61 CUSTOMS ENTRIES FILED BY CUSTOMHOUSE BROKER W. X. HUBER IN THE NAME OF W. X. HUBER CO., FOR THE ACCOUNT OF THE ACTUAL OWNERS (ULTIMATE CONSIGNEES) JOE ROSENBERG (5 ENTRIES) AND U.S. WIPING MATERIALS CORP. (56 ENTRIES). THE ENTRIES WERE RELIQUIDATED PURSUANT TO JUDGMENTS OF THE UNITED STATES CUSTOMS COURT IN ABSTRACT DECISIONS NOS. 60095 (37 CUST.CT. 286) AND 60163 (37 CUST.CT. 310). WITH THE EXCEPTION OF 6 ENTRIES NO OWNER'S DECLARATIONS WERE FILED AND THE OWNER'S DECLARATIONS WERE NOT TIMELY FILED AS TO THE 6 ENTRIES.

IN ADDITION TO THE CHECKS REFERRED TO ABOVE, WE ALSO HAVE CUSTOMS REFUND CHECK NO. 10,924,860, ISSUED NOVEMBER 27, 1957, IN THE AMOUNT OF $180 PAYABLE TO THE ORDER OF W. X. HUBER CO., IN CONNECTION WITH ENTRY NO. 2538 OF SEPTEMBER 20, 1939. IT APPEARS FROM THE RECORD BEFORE US THAT U.S. WIPING MATERIALS CORP. WAS THE PLAINTIFF IN THE UNITED STATES CUSTOMS COURT IN CONNECTION WITH THE ENTRY NO. 2538 UNDER PROTEST NO. 17270- K/30897, IN COTTON PRODUCTS CORPORATION ET AL. V. UNITED STATES, DECIDED AUGUST 16, 1956 (ABSTRACT DECISION NO. 60173). LAWRENCE AND TUTTLE, LOS ANGELES, CALIFORNIA, APPEAR AS ATTORNEYS OF RECORD FOR THE PLAINTIFFS. ACCORDINGLY, INSTRUCTIONS ARE BEING ISSUED TODAY TO OUR CLAIMS DIVISION TO TRANSMIT CHECK NO. 10,924,860, PROPERLY ENDORSED, TO U.S. WIPING MATERIAL CORP.

IT APPEARS FROM THE RECORD BEFORE US THAT THE PLAINTIFF IN THE ABOVE CITED CUSTOMS COURT ACTIONS IN CONNECTION WITH THE ENTRIES INVOLVED IN YOUR CLIENTS' CLAIMS WAS W. X. HUBER CO., AND AS INDICATED ABOVE THE BUREAU OF CUSTOMS HAD THE REFUND CHECKS DRAWN PAYABLE TO W. X. HUBER CO., AS NOMINAL CONSIGNEES AND OWNER OF RECORD, PURSUANT TO CUSTOMS LAWS AND REGULATIONS.

THE RECORD DISCLOSES THAT THE CHECKS WERE MAILED IN THE CARE OF THE COLLECTOR OF CUSTOMS AT LOS ANGELES, CALIFORNIA, IN ACCORDANCE WITH MR. HUBER'S REQUEST. J. ROSENBERG, BY LETTER DATES DECEMBER 5, 1956, ON BEHALF OF HIMSELF AND U.S. WIPING MATERIALS CORP. REQUESTED W. X. HUBER TO ENDORSE OVER TO THE CORPORATION AND/OR HIMSELF THE REFUND CHECKS BEING HELD IN THE OFFICE OF COLLECTOR OF CUSTOMS OF LOS ANGELES, SINCE THE DUTIES WERE PAID BY J. ROSENBERG OR THE CORPORATION ON THE MERCHANDISE INVOLVED, WHICH WAS OWNED BY ONE OR THE OTHER OF THE PARTIES AND NEITHER WERE INDEBTED TO W. X. HUBER. BY LETTER DATED DECEMBER 14, 1956, TO THE U.S. WIPING MATERIALS CORP. AND MR. J. ROSENBERG, MR. HUBER ALLEGED HE WAS ENTITLED TO 25 PERCENT OF THE REFUNDS BUT THAT HE DID NOT INTEND TO HOLD ANY FUNDS BELONGING TO MR. ROSENBERG OR THE CORPORATION. MR. ROSENBERG AND THE CORPORATION DENY THAT THERE IS ANY BASIS FOR MR. HUBER'S CLAIM AND APPARENTLY REQUESTED THAT THE BUREAU OF CUSTOMS FORWARD THE MATTER HERE FOR SETTLEMENT BY US, WHICH THE BUREAU DID BY LETTER DATED MARCH 27, 1959.

NUMEROUS REASONS WERE ADVANCED BY YOU AND YOUR CLIENTS IN YOUR EARLIER CORRESPONDENCE AS TO (1) WHY PAYMENTS SHOULD NOT BE MADE TO MR. HUBER, AND (2) WHY PAYMENTS SHOULD BE MADE TO YOUR CLIENTS. GENERALLY THE BASIS SET FORTH FOR NOT MAKING PAYMENT TO MR. HUBER IS THAT YOUR CLIENTS ARE NOT INDEBTED TO HIM AND THAT HE WILL NOT PAY OVER THE CUSTOMS REFUNDS TO YOUR CLIENTS IF PAYMENT IS MADE TO HIM; AND THE BASIS FOR PAYMENT TO YOUR CLIENTS IS THAT THEY WERE THE ACTUAL OWNERS OF THE MERCHANDISE AND HAD PAID ALL CUSTOMS DUTIES DUE THEREON.

SUBSEQUENTLY BY LETTER DATED APRIL 3, 1959, YOU REQUESTED A CONFERENCE CONCERNING THE MATTER WITH REPRESENTATIVES OF THIS OFFICE, AND THE CONFERENCE WAS HELD ON APRIL 16, 1959. DURING THE CONFERENCE YOU INDICATED THAT MR. HUBER HAD DIED AND YOU REQUESTED THAT WE WITHHOLD ACTION ON THE CASE FOR 30 DAYS SO THAT YOU COULD PETITION THE CUSTOMS COURT FOR AN AMENDED JUDGMENT. WE AGREED TO COMPLY WITH YOUR REQUEST. LETTER DATED MAY 8, 1959, YOU STATED YOU HAD FILED THE NECESSARY PLEADINGS WITH THE UNITED STATES CUSTOMS COURT AT NEW YORK AND HAD APPLIED FOR CLARIFICATION OF THE "JUDGMENT ORDER.' BY LETTER DATED MAY 21, 1959, YOU ADVISED US IN PERTINENT PART AS FOLLOWS:

"PURSUANT TO THE PROCEEDINGS INITIATED BY ME BEFORE THE UNITED STATES CUSTOMS COURT IN APRIL OF THIS YEAR, OF WHICH I INFORMED YOU IN MY LETTER OF MAY 8, THAT COURT HAS NOT ISSUED ITS ORDER DATED MAY 18, 1959, CORRECTING NUNC PRO TUNC, ITS JUDGMENT ORDER OF JULY 5, 1956, FROM WHICH THE REFUNDS THE SUBJECT OF THIS CLAIM STEM, TO SHOW IN FULL THE NAMES OF THE TRUE PARTIES PLAINTIFF. COPY OF THE COURT ORDER OF MAY 18, 1959, IS ATTACHED HERETO, TOGETHER WITH COPY OF THE DECISION, SCHEDULE OF ENTRIES AND JUDGMENT ORDER OF JULY 5, 1956, TO WHICH IT RELATES. THIS JUDGMENT, AS CORRECTED, COVERS ALL BUT THREE OF THE ENTRIES THE SUBJECT OF THE ABOVE CLAIM.

"ALSO ENCLOSED IS COPY OF CERTIFIED COPY OF JUDGMENT ORDER OF THE UNITED STATES CUSTOMS COURT DATED AUGUST 16, 1956 IN THE MATTER OF J. ROSENBERG V. UNITED STATES, PROTEST NO. 594425-G/8, TC., WHICH COVERS THE THREE REMAINING ENTRIES (OF J. ROSENBERG) THE SUBJECT OF THE ABOVE CLAIM, AS FOLLOWS:

TABLE

"ENTRY NO. DATE OF ENTRY AMOUNT REFUNDED D.E. 10049 6-21-32 $ 85.50 D.E. 1060 8 16-32 219.00 D.E. 3085 11-10-32 112.50

"ON THE BASIS OF THE RECORD NOW BEFORE YOU, IT IS RESPECTFULLY REQUESTED THAT THE REFUNDS THE SUBJECT OF THE ABOVE CLAIMS BE ISSUED IN ACCORDANCE WITH THE CLAIMS OF MY CLIENTS AND THE JUDGMENT ORDERS OF THE UNITED STATES CUSTOMS COURT, TO THE TRUE PARTIES PLAINTIFF, J. ROSENBERG AND U.S. WIPING MATERIALS CORPORATION, WHO ACTUALLY PAID THE DUTIES, AND WHO ARE NAMED IN THE JUDGMENT ORDERS OF THE UNITED STATES CUSTOMS COURT. THIS DISPOSITION OF THE MATTER WOULD BE CONSISTENT WITH THE DETERMINATION MADE BY YOUR OFFICE IN 1953 IN THE CASE OF T. W. HOLT AND CO., WHEREIN THE JUDGMENT ORDER OF THE UNITED STATES CUSTOMS COURT WAS IN THE NAME OF T. W. HOLT AND CO., TO WHOM PAYMENT OF THE REFUNDS WAS AUTHORIZED BY THE GENERAL ACCOUNTING OFFICE, NOTWITHSTANDING THAT THE ENTRIES WERE MADE IN THE NAME OF HIS CUSTOM HOUSE BROKER AND THAT NO OWNER'S DECLARATIONS HAD BEEN FILED.'

THE CERTIFIED COPY OF JUDGMENT ORDER OF THE UNITED STATES CUSTOMS COURT, DATED AUGUST 16, 1956, IS NOT "IN THE MATTER OF J. ROSENBERG V. UNITED STATES," AS STATED IN YOUR LETTER BUT IS IN THE MATTER OF J. ROSENBERG ET AL. V. UNITED STATES, PROTEST NO. 594425-G/8 ETC., AND THE SCHEDULE OF PROTESTS ANNEXED TO THE JUDGMENT ORDER OF THE COURT SHOWS THAT W. X. HUBER CO. WAS THE PLAINTIFF IN QUESTION IN CONNECTION WITH THE THREE ENTRIES CITED IN YOUR LETTER.

A COPY OF THE UNITED STATES CUSTOMS COURT ORDER, DATED MAY 18, 1959, DISCLOSES THAT THE ORDER CORRECTED THE JUDGMENT ORDER ENTERED JULY 5, 1956 (ABSTRACT DECISION NO. 60095, 37 CUST.CT. 6),"NUNC PRO TUNC TO SHOW THE FULL NAME OF THE PARTIES PLAINTIFF AS "W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP. ET AL., " AS SET OUT ON THE STIPULATION OF SUBMISSION.' MAY 18 ORDER ALSO CORRECTED THE SCHEDULE OF ENTRIES ATTACHED TO THE SAID DECISION "NUNC PRO TUNC TO SHOW THE FULL NAMES OF THE PARTIES PLAINTIFF AS SET OUT IN THE STIPULATION OF SUBMISSION, TO WIT, AS "W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP.' IN ALL OF THE ENTRIES COVERED BY THE SAID SCHEDULE," WITH THE EXCEPTION OF THE LAST THREE "WHEREIN THE FULL NAME OF THE PLAINTIFF BE AND THE SAME IS HEREBY CORRECTED NUNC PRO TUNC TO READ "W. X. HUBER CO. A/C J. ROSENBERG.'"

AMENDING THE JUDGMENT IN THE MANNER INDICATED WOULD APPEAR MERELY TO SET FORTH SPECIFICALLY THAT THE CUSTOMS REFUNDS TO BE PAID W. X. HUBER CO. ARE FOR THE ACCOUNT OF U.S. WIPING MATERIALS CORP. OR J. ROSENBERG, AS THE CASE MAY BE. IN VIEW OF THE RELATIONSHIP BETWEEN THE PARTIES W. X. HUBER CO. WOULD HAVE BEEN OBLIGED TO ACCOUNT TO YOUR CLIENTS FOR THE REFUNDS, EVEN THOUGH THE JUDGMENT WERE NOT CORRECTED. SEE 19 C.F.R. 31.10 (K) (1). IN OTHER WORDS W. X. HUBER CO. WOULD HAVE BEEN ACCOUNTABLE TO THE U.S. WIPING MATERIALS CORP. OR J. ROSENBERG FOR ANY MONEY PAID IT UNDER THE ORIGINAL JUDGMENT. ANY CHECKS COVERING THE CUSTOMS REFUNDS DUE PURSUANT TO THE AMENDED JUDGMENT ORDER WOULD SHOW THE PAYEE TO BE "W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP.' OR "W. X. HUBER CO. A/C J. ROSENBERG," AS THE CASE MAY BE.

YOU CONTEND THAT PAYMENT OF THE PROCEEDS OF THE CHECKS TO YOUR CLIENT WOULD BE CONSISTENT WITH OUR DETERMINATION IN THE CASE OF T. W. HOLT AND COMPANY, WHEREIN THE JUDGMENT ORDER OF THE UNITED STATES CUSTOMS COURT WAS IN THE NAME OF THAT COMPANY. YOU SAY THAT WE AUTHORIZED PAYMENT OF THE CUSTOMS REFUNDS TO THE SAID COMPANY, NOTWITHSTANDING THAT THE ENTRIES WERE MADE IN THE NAME OF HIS CUSTOMHOUSE BROKER AND THAT NO OWNER'S DECLARATION HAD BEEN FILED.

THE CASE OF T. W. HOLT AND COMPANY V. UNITED STATES, 41 C.C.P.A. (CUSTOMS) 8, IS DISTINGUISHABLE FROM THE INSTANT CASE. IN THAT CASE THE ACTUAL OWNER, T. W. HOLT AND COMPANY, WAS THE PLAINTIFF IN THE CUSTOMS COURT PROCEEDING AND THE NOMINAL CONSIGNEE WAS NOT A PARTY THERETO. HENCE, THE JUDGMENT IN THAT CASE WAS IN FAVOR OF T. W. HOLT AND COMPANY AND THEREFORE WE MADE REFUND OF THE EXCESS CUSTOMS DUTIES IN ACCORDANCE WITH THE JUDGMENT OF THE CUSTOMS COURT. HOWEVER, IN THE INSTANT CASE JUDGMENT WAS ORIGINALLY IN FAVOR OF W. X. HUBER CO. AND WAS SUBSEQUENTLY CORRECTED IN FAVOR OF W. X. HUBER CO. A/C U.S. WIPING MATERIALS CORP. OR J. ROSENBERG, ACCORDING TO THE ENTRIES AND PROTESTS INVOLVED. INDICATED ABOVE IT IS OUR VIEW THAT PAYMENT MAY NOT BE MADE TO THE U.S. WIPING MATERIALS CORP. OR J. ROSENBERG, BUT INSTEAD MUST BE MADE TO W. X. HUBER CO., IN ACCORDANCE WITH THE AMENDED JUDGMENT.

IT IS CLEAR FROM THE FOREGOING THAT ON THE PRESENT RECORD WE MAY NOT PAY THE CUSTOMS REFUNDS IN QUESTION TO YOUR CLIENTS EXCEPT FOR THE PROCEEDS OF CHECK NO. 10,924,860, SINCE NEITHER WOULD BE QUALIFIED TO GIVE A GOOD ACQUITTANCE TO THE UNITED STATES.

CONCERNING PAYMENT TO W. X. HUBER CO., YOUR LETTER INDICATES THAT W. X. HUBER, ALSO KNOWN AS W. X. HUBER AND W. X. HUBER CO., IS NOW DECEASED. APPEARS THAT W. X. HUBER CONDUCTED HIS CUSTOMHOUSE BROKERAGE BUSINESS UNDER THE NAME AND IN THE STYLE OF W. X. HUBER CO. W. X. HUBER THROUGH HIS ATTORNEYS BY LETTER DATED JULY 9, 1957, REQUESTED PAYMENT BE MADE TO HIM. HOWEVER, THE POWER OF ATTORNEY GIVEN BY W. X. HUBER TO HIS ATTORNEYS WOULD BE TERMINATED BY MR. HUBER'S DEATH, IF IN FACT HE IS DECEASED, AND WE HAVE NO CLAIM BEFORE US FROM A LEGAL REPRESENTATIVE OF MR. HUBER'S ESTATE. THEREFORE, WE WILL RETAIN THE CUSTOMS REFUND CHECKS HERE.

IF WITHIN A REASONABLE TIME YOU ADVISE US THAT YOU ARE TAKING APPROPRIATE ACTION TO OBTAIN A COURT ORDER OR DECREE TO THE EFFECT THAT YOUR CLIENTS, RATHER THAN W. X. HUBER CO., ARE ENTITLED TO THE REFUNDS OF THE EXCESS CUSTOMS DUTIES OR THE PROCEEDS OF THE CHECKS, OR THAT A PUBLIC ADMINISTRATOR, OR YOUR CLIENTS, HAVE OBTAINED LETTERS OF ADMINISTRATION IN CONNECTION WITH MR. HUBER'S ESTATE, PURSUANT TO SECTION 422, PROBATE CODE ANNOTATED, DEERING'S CALIFORNIA CODE, WE WILL HOLD THE MATTER IN ABEYANCE PENDING THE OUTCOME OF THE COURT PROCEEDINGS, OR, IN CASE LETTERS OF ADMINISTRATION HAVE BEEN OBTAINED, A CLAIM FROM THE PERSON APPOINTED ADMINISTRATOR TOGETHER WITH PROOF OF HIS APPOINTMENT.