F & D Trading Corp. v. United States

64 Cust. Ct. 810, 1970 Cust. Ct. LEXIS 3205
CourtUnited States Customs Court
DecidedFebruary 6, 1970
DocketA.R.D. 268; Entry No. 1020021
StatusPublished
Cited by1 cases

This text of 64 Cust. Ct. 810 (F & D Trading 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
F & D Trading Corp. v. United States, 64 Cust. Ct. 810, 1970 Cust. Ct. LEXIS 3205 (cusc 1970).

Opinions

EichaRdson, Judge:

This application was filed by the importer for a review of the decision and judgment of a single judge sitting in reappraisement in F & D Trading Corporation v. United States, 59 [812]*812Cust. Ct. 666, R.D. 11360, 273 F. Supp. 431 (1967), and holding that export value as appraised is the proper dutiable value of Volkswagen automobiles exported from West Germany. Appellant-importer claimed below and claims here that the automobiles should be appraised under the cost of production basis of appraisement, there being no foreign, export, or United States values for such or similar merchandise. And the broad question presented in this application is whether there was substantial evidence presented to the single judge to overcome the presumption of correctness attaching to the findings of the collector.

The record before the single judge consisted of the testimony of three witnesses, two affidavits, other documentary evidence and the official papers, all adduced on behalf of appellant, the plaintiff below. The appellee, defendant below, called one of appellant’s witnesses as its own witness.

It appears from the evidence that the involved Volkswagens were purchased by appellant in 1963 in West Germany from certain West German “exporters” and paid for in cash at what appellant’s business manager called “new car prices,” delivery being made by the sellers to appellant at the free trade zone in Hamburg, West Germany, as a condition to receiving payment. At the free trade zone appellant had the Volkswagens modified at its own expense to meet American standards, after which appellant exported the cars from West Germany to this country where they were appraised upon entry on the basis of export value.

The modification of the involved Volkswagens in the free trade zone at Hamburg, or “Americanization” of these cars as it is called, consisted, where needed, of the installation of safety glass windshields, leather seats, a mileage speedometer (as opposed to kilometer), sealed beam headlights, white directional lights and bumpers. The result of all of this is that these imported Volkswagens, which are of the well-known beetle type — styles 113 and 117 of model 1200 — were not exported to the United States in the condition in which they were acquired by appellant in West Germany, the country of exportation.

The record indicates that the involved Volkswagens were acquired originally by the West German sellers from Volkswagen’s franchised dealers and from private individuals, that no manufacturer’s warranty was given by the franchised dealers with these cars, apparently as a means of shielding the dealers against possible punitive measures to be taken by the manufacturer against such dealers for placing these cars outside of the control of the franchise, and that during 1962 appellant purchased and exported to the States some 4000 of these Volkswagens in this fashion, and another 5000 of such cars in the [813]*813same way during 1963. And there were about 15 German based businesses selling Volkswagens in this maimer to appellant and other American dealers, but their number had been reduced to about six at the time of trial herein.

The affidavits of Rudolf Raab and Thure Dommenget, West German sellers, were placed in evidence by appellant as exhibits 1 and 2 with a view toward showing, among other things, that the market for Volkswagens sold outside of the franchise was confined to dealers such as appellant, and that the market for Volkswagens handled within the franchise was controlled by the manufacturer, Volkswagen Werke, of Wolfsburg, West Germany, down through the consumer or user. The testimony of Erwin Losch, a buyer and seller of Volkswagens for appellant, and James Westburg, president of Drexel Motors, Inc., a buyer and seller of Volkswagens, among other cars, was adduced by appellant with a view toward corroborating statements contained in exhibits 1 and 2 relative to home market practices as to Volkswagens and showing that the domestic market for the sale and distribution of Voklswagens in the United States within the franchise is controlled by the manufacturer through its American representative and importer-distributor, Volkswagen of America, Inc., and that the domestic market for the sale and distribution of Volkswagens in the United States outside of the franchise is restricted to dealers to whom appellant and other importers of such cars resell the Volkswagens. And the testimony of Bertram Saul, customs examiner in charge of appraisement and classification of automobiles and spare parts at the port of New York, was adduced by appellant with a view toward establishing that Volkswagens imported into the United States within the franchise during 1963 were appraised on the basis of cost of production, and that Volkswagens imported into the United States outside of the franchise during 1963 by appellant and other importers of such vehicles are considered by appraising officers to be “second hand” and as such are appraised on the basis of export value which is determined by adding the cost of Americanizing them there prior to exportation to the purchase price paid upon acquisition of such vehicles in West Germany. Examiner Saul’s testimony was also offered by appellee with a view toward clarifying the reason for appraising Volkswagens imported into the United States outside of the franchise in a different manner than those imported into the United States within the franchise. His explanation was that he classified them as second hand cars.

In question before the trial court and here is the sufficiency of the said affidavits and testimony to eliminate export and United States values for the involved merchandise, it being virtually conceded by [814]*814appellee that foreign values therefor are nonexistent, and to support a cost of production appraisement for such merchandise in the amounts contended for by appellant.

On the matter of export value, the trial court rejected the statements in exhibits 1 and 2 on the ground that in that court’s opinion the exhibits lacked substantial convincing proof with regard to the purr ported fluctuation of prices and the claimed reliance upon bargaining in the sales transactions; and the court also rejected the testimony on the ground that it constituted unsupported assertions and conclusory statements of the witnesses to the effect that the acquisition prices of the subject Volkswagens fluctuated. The court found evidence among the invoices covering the Volkswagens at bar that the prices paid therefor by appellant prior to Americanization did not fluctuate. The court in its opinion did not discuss the appropriateness of the method employed herein by the appraiser in returning export values as disclosed in the testimony of the examiner, which was, as previously indicated, the addition of the cost of Americanization to the acquisition price. The aforementioned reasons led the trial court to conclude that appellant had failed to rebut the presumption of correctness attaching to the appraisement of the involved Volkswagens on the basis of export value.

On the matter of United States value, the trial court was of the opinion that the evidence was wanting — the court discounting the testimony of the witness Losch that appellant’s sales, and those of its competitors were restricted to selected dealers as not being supported by other evidence. The trial court also concluded that the evidence did not negative the existence of United States value predicated on sales by the dealers to whom appellant and its competitors resold the involved Volkswagens, citing United States v.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. F & D Trading Corp.
474 F.2d 677 (Customs and Patent Appeals, 1973)

Cite This Page — Counsel Stack

Bluebook (online)
64 Cust. Ct. 810, 1970 Cust. Ct. LEXIS 3205, Counsel Stack Legal Research, https://law.counselstack.com/opinion/f-d-trading-corp-v-united-states-cusc-1970.