Simon v. United States

66 Cust. Ct. 107, 1971 Cust. Ct. LEXIS 2404
CourtUnited States Customs Court
DecidedFebruary 10, 1971
DocketC.D. 4177
StatusPublished
Cited by1 cases

This text of 66 Cust. Ct. 107 (Simon 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
Simon v. United States, 66 Cust. Ct. 107, 1971 Cust. Ct. LEXIS 2404 (cusc 1971).

Opinion

Maletz, Judge:

The problem in the present case is to determine the proper tariff on items invoiced as ukuleles that were imported from Japan through the port of Philadelphia in 1964. The articles— which the parties agree are in chief value of wood — were assessed duty by the government at the rate of 34 percent under item 725.06 of the tariff schedules as “[o]ther stringed [musical] instruments.” Plaintiff contends that this assessment is erroneous and that the importations are properly dutiable at 26 percent under item 737.60 as “[t]oy musical instruments.” Alternatively, plaintiff claims that the articles are dutiable at only 16% percent under item 207.00 which covers “[ajrticles not specially provided for, of wood.”

The imported article is in the shape of a standard ukulele and measures 20% inches in length and 6% inches in width (at its widest point). Its body is constructed of wood as are the tuning pegs. It has a plastic fingerboard and four strings made of nylon.

Turning now to the testimony, plaintiff’s first witness, the president of Schoenhut, Inc., the ultimate consignee of the imported articles, testified that Schoenhut is in the sole business of manufacturing and wholesaling toys; that its only customers are toy stores and toy departments throughout the United States; and that it sells the imported articles as toys to such customers. He stated that Schoenhut paid $14.63 per dozen (approximately $1.22 each) for the imported articles and charged its customers $21.60 per dozen ($1.80 each).1 On eight or ten occasions, the witness said he had seen the imported articles actually used. On such occasions he testified that he had seen the articles used 'by children. “Like most toys,” he said, “they just bang on it or string on it.”

Plaintiff’s second witness was Vito Spiotta, a retired musician, who at the time he testified was a teacher of all fretted instruments, including the guitar, ukulele, mandolin, etc. He said that he had been playing these instruments since 1888 when he was six years old. He [109]*109explained that stringed musical instruments bad basic tuning requirements; that tbis was true of a ukulele; that a, stringed instrument must be in tune in order to function as an instrument of music; and that if a stringed musical instrument does not keep its tune, it cannot be played alone nor with other instruments.

Spiotta testified that he had examined the import in question and had determined that it would not keep in tune “because the pegs * * * loosen up * * * and it gets out of tune.” Using a pitch pipe, he tuned the imported article and then started to play a few chords. However, after about five seconds, it went out of tune. He then retuned it to demonstrate how far it had gone out of tune. He conceded (that stringed musical instruments also go out of tune, but added that at least he could play a whole tune on a stringed instrument — which he could not do on the import.

Finally, Spiotta testified that he did not consider the import to be a musical instrument because it did not hold a tune, and for that reason also he could not teach on it. He added that as a professional he would not use the importation because it assertedly had no tone. In his opinion, it was merely a plaything for children.

Defendant presented as its witness Dr. Michael S. Giamo, Assistant Director of Music Education for the City of Philadelphia, which position he has occupied for the past 17 years. In that capacity, he said, his job is to improve musical instruction in the school system and to prepare specifications for all musical instruments that the city buys for the schools. He stated, however, that he does not buy ukuleles. Prior to going to work for the City of Philadelphia, the witness testified that he had been a professional musician for a number of years and that he had started on the violin at an early age and later studied the bassoon and clarinet. He added that he has a doctorate in music from the Philadelphia Conservatory of Music.

With further respect to his qualifications, the witness testified that he himself was not a ukuleleist; that he had never played a ukulele; and that he had no proficiency with a ukulele. He stated, however, that as a professional musician he had played for a number of shows at which Hawaiian people had played ukuleles that resembled the importation, and that he had friends who were professional musicians who played a ukulele. In fact, he said that his older brother owned one “and his kids would fiddle around with it.”2

Coming now to his substantive testimony, Giamo stated that the import had all the physical characteristics of a ukulele and that, in his opinion, it was a musical instrument and not a toy. One basis for his opinion, he said, was that the import is strung with nylon strings and is thus like other stringed instruments in this regard; the frets [110]*110are properly placed or graduated; there is a nut in proper position above the frets to prevent the strings from rubbing against the frets while vibrating; the tuning pegs are well tapered so that when they are pressed in and turned, the friction is sufficiently tight to hold the strings; the tailpiece is well made and well proportioned to receive the knotted ends of the strings; and the strings are equidistant. Another basis for his opinion, he stated, was that the import is similar in color and design to an article having a retail price of $14.50 which was illustrated in a catalogue issued by Berger’s Music Mall of Philadelphia and which was described therein as a “standard size uke * * * top favorite for playtime music,” with the size indicated to be 6% x 20% inch size — the same size as the importation involved here. The witness said that he had frequently used this catalogue as a reference.3

On a related matter, Giamo testified that all stringed instruments have a propensity to go off tune because of atmospheric conditions, moisture in the air, and the stretching of the strings when they are plucked and pulled in the course of playing or chording. He stated that the strings on the import in question were new; that all new strings have to be tuned for a number of hours before they reach their maximum point of stretching; that the strings on the import were not stretched to maximum tolerance and thus did not maintain pitch; and that professional players play a newly stringed instrument for a number of hours before playing in a concert.

On cross-examination, the witness testified that although (as previously indicated) he was not a ukuleleist, he was able to tune the sample importation and to play a scale and chord for the court. However, after this short exercise, the instrument had to be retuned. He then played a chord for three seconds following which three of the four strings again had to be retuned.4

[111]*111Considering now the legal aspects, “the intent under the tariff schedules is that an article should be classified as a true musical instrument rather than a itoy musical instrument, only if it is of such quality and character as would ordinarily be used for serious musical study or use.” Montgomery Ward & Co. v. United States, 62 Cust. Ct. 718, 723, C.D. 3853 (1969). See also United States v. B. Illfelder & Co., 57 Treas. Dec. 687, T.D. 44002 (1930). Based upon the entire record, we conclude, for the reasons that follow, that the importation in question is not a true musical instrument but is, in fact, a toy.

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Cite This Page — Counsel Stack

Bluebook (online)
66 Cust. Ct. 107, 1971 Cust. Ct. LEXIS 2404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-united-states-cusc-1971.