Concord Electronics Corp. v. United States

85 Cust. Ct. 87, 1980 Cust. Ct. LEXIS 1163
CourtUnited States Customs Court
DecidedOctober 14, 1980
DocketC.D. 4877; Court No. 74-6-01614
StatusPublished

This text of 85 Cust. Ct. 87 (Concord Electronics Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Customs Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Concord Electronics Corp. v. United States, 85 Cust. Ct. 87, 1980 Cust. Ct. LEXIS 1163 (cusc 1980).

Opinion

Richardson, Judge:

The merchandise in this action consists of tape recorders, parts, and other electronic equipment exported from Japan and entered at the Port of New York between April 30, 1970 and May 11, 1971. The merchandise was appraised on the basis of export value as defined in 19 U.S.C.A., section 1401a(b) (section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956). In issue under the export.value basis is the dutiable status of an item designated on the invoices as “Our Commission”. The importer contends that this item is nondutiable because it is a buying commission.1

[88]*88The record in this action, hereinafter referred to as Concord II, consists of the testimony of four witnesses called on planitiff’s behalf, the entry papers, some, documentary exhibits, and the record in Concord Electronics Corp. v. United States, 69 Cust. Ct. 241, A.R.D. 304, 345 F. Supp. 1000 (1972), appeal dismissed, 60 CCPA 185 (1972), hereinafter referred to as Concord I, which was incorporated into the record in Concord II. In Concord I, an appellate term of the Customs Court affirmed the dismissal of the appeals for reappraisement which was rendered by a single judge (Maletz, J.) for failure of proof (R.D. 11744). Although Concord I involved the same parties and merchandise as are before the court in Concord II, the court never reached the issue as to the dutiable status of the commission in Concord I because the court found that the importer had never surmounted the separability hurdle, i.e., the capacity of a challenging party to limit its proofs to the single issue of the dutiability of the commission, owing to the severable character of the appraisement. The Concord I court reasoned that

there is no evidence to show what the appraising officer did except that he placed a red check mark in the column headed “Appraised” on the summary sheet, thus indicating that the appraised value agreed with the entered value. (P. 244.) [Italic added.]

And the court went on to conclude that

even if the commissions are bona fide buying commissions, they may not be deducted from the appraised values in order to establish different dutiable values, in the absence of evidence of all the elements of export value * * *. (Pp. 246-247.)

Concord II raises again the separability issue and the related issue as to the bona fides of the alleged buying commission. With respect to separability, the record in Concord II shows that plaintiff requested of defendant to admit, pursuant to Rule 6.2 of the Customs Court Rules, that “the commission indicated on the entry documents was included as one of the elements of value in determining the appraised value of that entry.” And defendant responded to this request under the rule with a categorical “Admitted.”

Additionally, import specialist Harold O'Neil testified that the Stamp “Correction Approved” placed on the summary sheet in entry 401377 reflected the fact that the commission shown on the invoice was originally deducted by the broker as nondutiable in his calculation of entry value, but was added back on instructions from the entry clerk when the clerk rejected the entry and returned it to the broker for that purpose. And it was also brought out in the witness’ testimony that after the court’s initial decision in Concord I, Mr. O’Neil wrote on a transmittal and routing slip under date of December 17, 1973,.directed to the Protest Section the words “appeal for reappraisement dismissed per RD 11744 — 6/1/71 Commission remains dutiable.” (Exhibit 1.)

[89]*89Plaintiff argues that this evidence establishes that the appraise-ments in Concord II are separable. Defendant disagrees.

The court agrees with plaintiff. In the court’s opinion, defendant’s response to plaintiff’s request for admissions conclusively removes the question of separability from contention in the case.

The admitted matter indicates that the commission on the entry documents was included as one of the elements of value in determining the appraised value. By admitting this, defendant identifies a commission as an element included in the admittedly unitary appraised value. It matters not at this point, as defendant undertakes to argue, that the admission does not establish to what extent or in what sense the stated commission was included as an element of value. It is the function of the challenging party’s evidence to ferret out the details relative to the identity and purpose of the commission. Cf. United States v. Imperial Products, Inc., 65 CCPA 38, C.A.D. 1203, 570 F. 2d 337 (1978).

Admission practice under the court’s rules requires that a party specifically admit or deny the matter or set forth the reasons why the answering party cannot truthfully admit or deny the matter. The documentary evidence noted substantiates the genuine character of the admission, and indeed, may well have been the inducement for the admission itself. The admission is binding on the defendant.

Since defendant admits that a commission constitutes an element of the appraised value, the appraisements in Concord II are separable. H. M. Young Associates, Inc. v. United States, 69 Cust. Ct. 155, 159, C.D. 4388 (1972), aff’d, 62 CCPA 20, C.A.D. 1138, 505 F. 2d 721 (1974). And plaintiff may challenge the dutiability of the commission without disturbing the presumptively correct appraisements as to the other elements.

With respect to the commission, Howard P. Ladd, plaintiff’s former president, testified that plaintiff, on the basis of a 50-percent stock interest in the Hosho Corp. (down from complete control originally), utilized Hosho solely as a buying agent in connection with the importation of merchandise Concord acquired from various Japanese manufacturers with whom it negotiated directly. And Ladd’s testimony is corroborated by reference to a buying agency agreement dated January 25, 1968, contained in a report of a regional customs representative bearing date of November 30, 1971 (exhibit 7). The agreement provides for a 1.3 percent commission to the Hosho Corp. And the source investigated in the report disclosed that Hosho acted only as a buying agent and received only a commission for its services.

Of particular interest in the regional representative’s report is documentation in the form .of -sales notes and an invoice of one of the Japanese manufacturer’s, namely Matsushita Electric Industrial Co., [90]*90Ltd. Although these documents as reproduced in the report are mostly illegible, there is enough data on them to indicate the manufacturer’s awareness of plaintiff’s interest in the merchandise as buyer even though delivery is to be made to Hosho.

Also, there is the affidavit of B. Takahashi, dated January 12, 1970, the managing director of Matsushita Electric Trading Co., Ltd. of Tokyo, Japan, which was received in evidence in Concord I as exhibit 2. The Takahashi affidavit names plaintiff as purchaser of the merchandise and identifies Hosho as plaintiff’s agent. And, in an invoice attached to the affidavit as exhibit A, the Hosho Corp. is designated as a buying agent of Concord Electronics Corp.

Other evidence in the record is to the same effect, namely, the affidavit of Mike Miyake, dated January 12, 1970, president of the Hosho Corp. which was received in evidence in Concord I as exhibit 1.

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Related

H. M. Young Associates, Inc. v. United States
349 F. Supp. 1007 (U.S. Customs Court, 1972)
International Fashions v. United States
545 F.2d 138 (Customs and Patent Appeals, 1976)
United States v. Imperial Products, Inc.
570 F.2d 337 (Customs and Patent Appeals, 1978)
Concord Electronics Corp. v. United States
69 Cust. Ct. 241 (U.S. Customs Court, 1972)
United States v. H. M. Young Associates, Inc.
505 F.2d 721 (Customs and Patent Appeals, 1974)

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Bluebook (online)
85 Cust. Ct. 87, 1980 Cust. Ct. LEXIS 1163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concord-electronics-corp-v-united-states-cusc-1980.