Spanexico, Inc. v. United States

75 Cust. Ct. 123, 405 F. Supp. 1078, 75 Ct. Cust. 123, 1975 Cust. Ct. LEXIS 2204
CourtUnited States Customs Court
DecidedDecember 2, 1975
DocketCourt No. 72-5-01089
StatusPublished
Cited by4 cases

This text of 75 Cust. Ct. 123 (Spanexico, Inc. 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
Spanexico, Inc. v. United States, 75 Cust. Ct. 123, 405 F. Supp. 1078, 75 Ct. Cust. 123, 1975 Cust. Ct. LEXIS 2204 (cusc 1975).

Opinion

Maletz, Judge:

This action concerns the proper dutiable value of various items of furniture either of iron, iron and wood, iron and glass, or wood and glass that were manufactured by Gavaldon, S.Á. of Tijuana, Mexico and exported into this country via the port of [124]*124San Ysidro during the period from April 1970 through November 1970. The merchandise was appraised by the government on the ibasis of export value as defined in section 402(b) of the Tariff Act of 1930, as amended by the Customs Simplication Act of 1956, at certain per se values. Plaintiff Spanexico, the importer of the merchandise, agrees that export value is the proper basis for appraisement but contends that the invoice prices on the entries herein involved represent the proper dutiable values of the importations in question.1

The Statute

Section 402 of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956 (19 U.S.C. 1401a) provides as follows:

(b) For the purposes of this section, the export value of imported merchandise shall be the price, at the time of exportation to the United States of the merchandise undergoing appraisement, at which such' or similar merchandise is freely sold or, in the absence of sales, offered for sale in the principal markets of the country of' exportation, in the usual wholesale quantities and in the ordinary course of trade, for exportation to the United States, plus, when not'included in such price, the cost of all containers and coverings, of whatever nature and all other expenses incidental to placing the merchandise in condition, packed ready for shipment to the United States.
*•**.*. * * *
(f) For the purposes of this section—
(1) The term “freely sold or, in the absence of sales, offered for sale” means sold or, in the absence of sales, offered—
(A) to all purchasers at wholesale, or
(B) in the ordinary course of trade to one or more selected purchasers at wholesale at a' price which fairly reflects, the market value of the merchandise,
without restrictions as to the disposition or use of the merchandise by the purchaser, except restrictions as to such disposition or use which (i) are imposed or required by law, (ii) limit the price at which or the territory in which the merchandise may be resold, or (iii) do not substantially affect the value of the merchandise to usual purchasers at wholesale.
(2) The term “ordinary course of trade” means the conditions, and practices which, for a reasonable time prior to the exportation of the merchandise undergoing appraisement, have been normal in the trade under consideration with respect to merchandise of the same class or kind as the merchandise undergoing appraisement.
' * 'Hi • * Hi

[125]*125The Issues

Two questions are presented: First, whether or not the government appraisement is erroneous; second, if the appraisement is erroneous, whether plaintiff has proven by a preponderance of the evidence that its claimed values, i.e., the invoice prices, represent the proper dutiable values of the importations in question.

The Record

In the circumstances of the present case, the record is best understood by summarizing" the relevant testimony, starting with the testimony of Morris Kantorovich, president of the importer, Spanex-ico, and also president of the Riviera Sofa Bed Co., both of which were located at 2875 El Cajon Boulevard, San Diego. Mr. Kantoro-vich testified that Spanexico was a corporation formed in 1969 to import wrought iron and wooden furniture from Mexico. It first purchased this furniture for about three months in 1969 from a Mexican manufacturer, Muebles Coloniales Mexicanos. That firm, however, went out of business in September 1969. Kantorovich thereupon looked for other suppliers in Tijuana and in Mexicali, but could not find any to supply him, though there were a number of backyard operators in Tijuana as well as two larger manufacturers there, namely, Vargas and Manufacturera Commerciale; however, these two companies were already selling to somebody else and could not supply him. Kantorovich, therefore, asked Sergio Gavaldon, a social friend and not a business associate, who had never been in the furniture business if he would set up a plant to produce furniture that was up to the standard needed for the American buying public and thus enable Spanexico to obtain such merchandise from a reliable source. Gavaldon agreed and thereupon Gavaldon, S.A.2 of Tijuana was formed around September 1969. Mr. Kantorovich testified that he had no financial interest whatsoever in Gavaldon, S.A., did not own any of its stock and was not an officer or director. Although he sometimes went to visit the Gavaldon plant to see how his orders were doing, he did not supervise that company in any way. While Spanexico did not furnish or purchase any machinery for Gavaldon, S.A., it did furnish designs or plans for furniture as well as the glass, cartons, and packing materials for the furniture.3

Furniture purchased by plaintiff Spanexico from Gavaldon, S.A. was paid for by check payable to whomever Gavaldon designated; thus, on occasion, Spanexico paid for the furniture by depositing its check for the amount due in an account Gavaldon, S.A. maintained [126]*126in a San. Diego bank. Money in this account was used to establish credit so that Gavaldon, S.A. could purchase materials it needed ■from American suppliers. Bank statements from the account were ;sent to Spanexico’s office in San Diego.

Mr. Kantorovich would sometimes purchase supplies for Gavaldon, ■S.A. for which he was repaid by checks written on this account. -He bought such supplies on behalf of Gavaldon, S.A. since American 'companies were afraid to sell to companies in Mexico for fear they would not get paid.

The checkbooks for Gavaldon, S.A.’s bank account were kept at Spanexico’s office in San Diego. At Mr. Gavaldon’s request, Mr. Kantorovich asked Mrs. Eileen Krake — who was Spanexico’s secretary-treasurer and also secretary to Kantorovich in his capacity as president of Riviera Sofa Bed — to write and sign all checks for Gavaldon, S.A. Spanexico did not have similar arrangements with any other manufacturer and did not charge Gavaldon, S.A. for the services performed by Mrs. Krake.

Additionally, Spanexico advanced to Gavaldon, S.A. without any interest a total of $146,982.20 for the period August 1, 1969 through October 31, 1970, of which only $80,600.00 was repaid as of the latter date. The money was apparently advanced without any guarantee to Spanexico that the money would not be used to manufacture merchandise for sale to others. According to Mr. Kantorovich, Mexican manufacturers require an advance for merchandise to insure performance.4 Kantorovich further testified that Gavaldon, S.A. needed the advances to meet payrolls and to buy materials to produce the merchandise, because it did not itself have the necessary resources.

All of Spanexico’s advances were not repaid because Gavaldon, S.A. had a fire, could not collect insurance thereon, could not provide Spanexico with the merchandise, and went out of business in December 1970.

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Related

Baldwin v. United States
78 Cust. Ct. 164 (U.S. Customs Court, 1977)
Carmichael International Service v. United States
78 Cust. Ct. 143 (U.S. Customs Court, 1977)
Ernest Lowenstein, Inc. v. United States
425 F. Supp. 856 (U.S. Customs Court, 1977)
Spanexico, Inc. v. United States
542 F.2d 568 (Customs and Patent Appeals, 1976)

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Bluebook (online)
75 Cust. Ct. 123, 405 F. Supp. 1078, 75 Ct. Cust. 123, 1975 Cust. Ct. LEXIS 2204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/spanexico-inc-v-united-states-cusc-1975.