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WHICH DENIED YOUR REQUEST TO HAVE THE COLLECTOR OF CUSTOMS. THE DUTIES ON WHICH WERE PAID BY SEABOARD SURETY COMPANY. THE RECORDS DISCLOSE THAT THE ULTIMATE CONSIGNEE OF THE ABOVE REFUND ENTRY IS SEABOARD EQUIPMENT COMPANY. THAT THE ULTIMATE CONSIGNEE ON BOTH OF THE INCREASED DUTY ENTRIES SHOWN ABOVE IS FINNWARE TRADING CORPORATION. NO OWNER'S DECLARATIONS WERE FILED ON ANY OF THE ENTRIES. AT WHICH TIME THE ENTRY WAS LIQUIDATED FOR INCREASES IN DUTIES FOR $466.54. IN LETTER OF THE SAME DATE INDICATED THAT IT WOULD FILE FOR RECOVERY OF SUCH PAYMENT IF THE ENTRY WAS RELIQUIDATED FOR A REFUND. RESERVING THE RIGHT TO HAVE THIS REFUND APPLIED AGAINST ANY INCREASED DUTIES ASSESSED AGAINST W. THE PROTEST WAS PROCESSED THROUGH THE CUSTOMS COURT.

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B-145538, JUL. 14, 1961

TO SEABOARD SURETY COMPANY:

YOUR LETTER OF MAY 11, 1961, REQUESTS RECONSIDERATION OF OUR CLAIMS DIVISION SETTLEMENT OF MARCH 17, 1961, WHICH DENIED YOUR REQUEST TO HAVE THE COLLECTOR OF CUSTOMS, NEW YORK, NEW YORK, SET OFF AN AMOUNT OF $490, SUBSEQUENTLY REDUCED TO $452.74, DEMANDED--- FROM YOU, AS SURETY--- AS INCREASED DUTIES ON ENTRIES NOS. 767594 AND 773179, FILED IN THE NAME OF W. A. LEE COMPANY FOR FINNWARE TRADING CORPORATION AGAINST A REFUND OF $466.54 TO W. A. LEE COMPANY FOR ACCOUNT OF SEABOARD EQUIPMENT COMPANY AS A RESULT OF THE RELIQUIDATION OF ENTRY NO. 822360, THE DUTIES ON WHICH WERE PAID BY SEABOARD SURETY COMPANY.

THE RECORDS DISCLOSE THAT THE ULTIMATE CONSIGNEE OF THE ABOVE REFUND ENTRY IS SEABOARD EQUIPMENT COMPANY, AND THAT THE ULTIMATE CONSIGNEE ON BOTH OF THE INCREASED DUTY ENTRIES SHOWN ABOVE IS FINNWARE TRADING CORPORATION, A/C GALLIE CORPORATION. NO OWNER'S DECLARATIONS WERE FILED ON ANY OF THE ENTRIES. THE RECORDS ALSO SHOW THAT A PROTEST AGAINST THE LIQUIDATION OF ENTRY NO. 822360 HAD BEEN FILED, AT WHICH TIME THE ENTRY WAS LIQUIDATED FOR INCREASES IN DUTIES FOR $466.54. SEABOARD SURETY COMPANY PAID THE INCREASES ON OCTOBER 6, 1959, AND IN LETTER OF THE SAME DATE INDICATED THAT IT WOULD FILE FOR RECOVERY OF SUCH PAYMENT IF THE ENTRY WAS RELIQUIDATED FOR A REFUND, AND RESERVING THE RIGHT TO HAVE THIS REFUND APPLIED AGAINST ANY INCREASED DUTIES ASSESSED AGAINST W. A. LEE COMPANY. THEREAFTER, THE PROTEST WAS PROCESSED THROUGH THE CUSTOMS COURT, RESULTING IN ENTRY NO. 822360 BEING RELIQUIDATED FOR THE REFUND OF THE $466.54. SEABOARD SURETY COMPANY THEREUPON REQUESTED SETOFF OF THIS REFUND AGAINST THE INCREASED DUTIES ASSESSED AGAINST ENTRIES NOS. 767594 AND 773179 MENTIONED ABOVE.

AS INDICATED IN OUR CLAIMS DIVISION SETTLEMENT OF MARCH 17, 1961, SINCE AN OWNER'S DECLARATION HAD NOT BEEN FILED WITH ENTRY NO. 822360 THERE IS NO AUTHORITY TO PAY THE REFUND TO OTHER THAN THE ESTATE OF W. A. LEE, THE DECEASED BROKER. ALSO, INASMUCH AS NO OWNER'S DECLARATION HAD BEEN FILED WITH ENTRIES NOS. 767594 AND 773179, THE ESTATE IS LIABLE FOR THE INCREASED DUTIES ON THESE ENTRIES. THUS, AS INDICATED IN YOUR LETTER THE LEE ESTATE IS BOTH THE DEBTOR AND CREDITOR OF THE UNITED STATES.

IN MAGINNIS, ET AL. EXRS. V. UNITED STATES, 74 CT.CL. 668, CERTIORARI DENIED, 287 U.S. 624, THE COURT HELD IN EFFECT THAT EXCESS CUSTOM DUTIES DUE A CUSTOMS BROKER COULD BE APPLIED IN LIQUIDATION OF A JUDGMENT OBTAINED BY THE UNITED STATES AGAINST THE BROKER, NOTWITHSTANDING THAT THE BROKER WAS NOT THE ACTUAL OWNER OF THE IMPORTED GOODS AND THAT THE MONEYS USED TO PAY THE CUSTOM DUTIES WERE FURNISHED THE BROKER BY THE ACTUAL OWNER OF THE IMPORTED GOODS. THE COURT BASED ITS DECISION ON SECTIONS 483 AND 485 (D) OF THE TARIFF ACT OF 1922 WHICH, TAKEN TOGETHER, PROVIDE IN EFFECT THAT THE NOMINAL CONSIGNEE IS TO BE THE OWNER OF MERCHANDISE FOR ALL CUSTOMS PURPOSES UNLESS AN OWNER'S DECLARATION HAS BEEN FILED.

IN VIEW OF ALL THE FACTS AND CIRCUMSTANCES AND TAKING INTO CONSIDERATION THE DECISION OF THE COURT OF CLAIMS IN THE MAGINNIS CASE WE AGREE THAT THE REFUND DUE THE ESTATE OF W. A. LEE PROPERLY MAY BE APPLIED TO THE INCREASED DUTIES DUE ON ACCOUNT OF ENTRIES NOS. 767594 AND 773179 FOR WHICH THE ESTATE OF W. A. LEE IS LIABLE. SINCE THE FUNDS INVOLVED ARE HELD BY THE BUREAU OF CUSTOMS WE ..END :

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