United States v. International Commercial Co.

28 Cust. Ct. 629

Opinions

Mollison, Judge:

In this case both the plaintiffs and defendant below have filed applications for review of the decision of the trial court, reported in 26 Oust. Ct. 607, Reap. Dec. 7980. In the opinion rendered by Cline, J., the facts have been set forth with great particularity and clearness, and it is deemed unnecessary for the purposes of this review to repeat or otherwise state the same here.

A careful reading of the record in the case, the decision of the court below, the assignments of errors, the briefs, and the transcript of the oral argument had before this division leads to the conclusion that there are four questions involved in these applications for review, the answers to which will be dispositive of all of the issues in the case. These are—

I Whether the exportation of canned corned beef from Argentina to the United States was, at the time of exportation of the merchandise here involved, so restricted and controlled that no export value therefor existed within the meaning of section 402 (d) of the Tariff Act of 1930.

II If there was no such restriction or control, whether the offers and sales of canned corned beef by Compañía Sansinena may be considered as establishing export value within the meaning of the statute.

III If export value was so established, whether the 20 per centum I. A. P. 1.

Footnotes

•

† charge was part of the export value.

IV Also, if export value was so established, whether the excess of money paid by the importers of canned corned beef over the amount received by the packers, resulting from the foreign exchange control exercised by I. A. P. I. and other Argentine governmental agencies or instrumentalities, was part of the export value.

In support of their contention that exportation of canned corned beef from Argentina to the United States was, at the time of exportation of the merchandise here involved, so restricted and controlled that no export value therefor existed within the meaning of section 402 (d) of the Tariff Act of 1930, counsel for the importers* havepointed to certain arbitrary, onerous, and costly (to the seller (i. e., the packer) and the purchaser) procedures and actions by I. A. P. I., the claimed effect of which, either severally or in sum total, was to destroy a free export market.

In considering the effect of I. A. P. I. upon the exportation to the United States of canned corned beef from Argentina during the period of time here in question, it seems clear that I. A. P. I. was a creation of the Argentine Government which was granted what amounted to governmental powers, and, according to its history as delineated in the record, its procedures and actions were undertaken for the benefit of the Argentine Nation. So far as the exportation of canned corned beef to the United States was concerned, in the broad aspect its purposes and results were (1) to bring to Argentina the greatest possible number of United States dollars in return for the exportable surplus of canned corned beef, and (2) to secure, presumably for the benefit of the Argentine Government, a portion of the purchase price by means of (a) direct and indirect charges, and (b) exchange control procedures.

As established by the record, the procedures and actions of I. A. P. I., so far as the exportation to the United States of canned corned beef was concerned, fall into two categories: (1) Those which had to do with fixing or establishing the price at which the merchandise might be sold, and (2) those which had to do with the remaining aspects of export transactions. In the former category were the price-fixing activities, the charges made by I. A. P. I. or controlled by I, A. P. I., and the exchange control activities directed or controlled by I. A. P. I. In the latter category was the absolute veto power which I. A. P. I. maintained over each prospective export transaction.

So far as the procedures and actions of the first category are concerned, we observe that these affected the price at which the merchandise was offered for sale, but did not affect the offer or the sale of the merchandise. The valuation statute does not require that the means or method by which the price at which goods are offered is determined must be free, but that the offer, and, implicitly, the sale, must be free. Price may be determined by economic, personal, political, or other factors, or combination of factors, and there is nothing in the statute or in the state of the law today which indicates that the price for valuation purposes must be the result of what counsel for the importers in the brief filed in their behalf call “normal competitive conditions.” On the contrary, it was specifically held in the case of United States v. Michele Diagonale, 22 C. C. P. A. (Customs) 517, T. D. 47497, that—

* * * competition in the price of merchandise in the country of exportation is not an indispensable element in establishing the foreign value thereof, * * * •

—and this holding obviously applies to export value as well. To be sure, when competition is shown to exist, it is a strong argument that the offers, and the market, are free, but it is not the sine qua non of free offer under the present statute.

It seems clear, therefore, that if, as claimed by importers, the procedures and actions of I. A. P. I. are to be held to have restricted or controlled the market in Argentina for exportation to the United States of canned corned beef, so that no export value therefor existed, such restriction or control must be found either in the procedures and actions in the last category, or in the sum total of all procedures and actions of I. A. P. I.

In our view, the procedures and actions in the last category do not amount to a restriction' or control which would destroy the free offer required by the statute. From the record it appears that, after having tentatively come to agreement with the purchaser, the seller or packer had to submit the details of the proposed export transaction to I. A. P. I. for approval as to quantity, purchaser, and terms. While it appears that I. A. P. Ids interest in each transaction was along the lines of securing the highest price and being satisfied that payment for the shipment would be forthcoming, nevertheless, it is also true that it possessed arbitrary powers in the matter and its decision was final.

It appears that the seller was free to offer his merchandise for sale to all who cared to buy, but consummation of the transaction was subject to official approval. The record is clear that I. A. P. I. had no hand in the offers, did not direct or suggest to whom they should be made, and there is no evidence that any pattern of restriction as to class or identity of purchasers was practiced by I. A. P. I. in its approval or disapproval of any transaction. It is true that in some, and possibly all, cases governmental regulation may amount to restriction in the sense that one may not do what one wishes to do. But not all restrictions, governmental or otherwise, spell out a restricted market in a tariff sense.

The end point in customs valuation is to find a measure by which the value of imported merchandise may be determined. Our present system of valuation is tied to the value in the foreign market of goods such as or similar to the imported goods, and the effort is to find the price one would have to pay in' the foreign market under ordinary circumstances as set forth in the statute to acquire such or similar goods, i. e., to own them. Those cases, from Goodyear Tire & Rubber Co. v. United States, 11 Ct. Cust. Appls. 351, T. D. 39158 (1922), down to and including United States v. Graham & Zenger, Inc., 31 C. C. P. A. 131 (Customs), C. A. D. 262 (1943), cited in importers’ brief, which have found restrictions or controls in the foreign market which bar a finding that merchandise such as or similar to that imported was freely offered for sale therein have all dealt with situations wherein the offer in the foreign market was for a conditional or qualified ownership, i. e., use, disposition, or resale was restricted or controlled. Clearly, the price at which qualified ownership of goods is offered does not reflect the value of goods not so qualified, and this is apparently the ratio decidendi of those cases.¹

Such restrictions do not exist in the case at bar. There were, as has been said, arbitrary, onerous, and costly obstacles in the path of export transactions, but none was insurmountable, and none was designed to, or resulted in, discrimination as to purchasers or qualification of the ownership of the offered goods. We conclude, therefore, that the restrictions and controls which obtained in the foreign market in the offer for sale of canned corned beef such as or similar to that in issue at or about the time of exportation thereof were not such as to bar a finding that export value existed and concur in that finding by the court below.

Turning, therefore, to the next question, which is whether the offers and sales of canned corned beef by Compañía Sansinena may be considered as establishing export value within the meaning of the statute, we observe that the record presents a somewhat equivocal situation. The exportations of canned corned beef here involved took place on August 5, 1947, and October 17, 1947, and as to these it was stipulated by counsel for the parties—

That the appraisement herein of the merchandise involved in both the consolidated appeals to reappraisement was based upon prices at which similar canned corned beef manufactured by the said [Compañía] Sansinena was sold for export to the United States on the respective dates of exportation of the two involved shipments.

It was further stipulated—

That subject to rulings of the court, it is agreed that for the purpose of showing the ordinary course of trade and the method of doing business by said Compañía Sansinena, in the sale or offer for sale of first-grade canned corned beef manufactured by it such or similar to that involved herein, any party may offer evidence respecting sales and/or offers for sale of such or similar merchandise, manufactured by the said Compañía Sansinena S. A. and exported to the United States during the entire period, August 1, 1947 to December 31, 1948, inclusive.

It is the contention of the importers, according to their brief, that Compañía Sansinena, from August 1, 1947, to December 31, 1948- — •

* * * either had one exclusive agent or several agents, did not make any effort to sell or offer to sell to all purchasers in the United States, in fact, refused to sell to some, and had withdrawn completely from the American market from February 6, 1948 to December 31, 1948.

We fail to see how, even under the last-quoted paragraph of the stipulation, the fact that Sansinena may have “withdrawn completely from the American market from February 6, 1948 to December 31, 1948” can be probative of any material fact in connection with the value in Argentina of canned corned beef for exportation to the United States on or about August 5 and October 17, 1947. The very statement seems to be a tacit admission that prior to February 6, 1948, Sansinena was engaged in the American market.

There is evidence that Compañía Sansinena, at the time of exportation of the merchandise here involved, had entered into what would appear to be an exclusive agent agreement with an American firm. There is also, however, strong evidence that Compañía Sansinena did not live up to that agreement, and that at the time of the exportations here involved it had a very limited quantity of merchandise available for sale, and that within that limited quantity it conducted its business in such a manner as to warrant the finding of the court below that it freely offered its merchandise for sale to all purchasers within the meaning of section 402 (d) of tbe Tariff Act of 1930. We therefore concur in the finding to that effect made by the court below.

On the question of whether the 20 per centum charge imposed by I. A. P. I. was part of the export value or not, it is undisputed that the price at which the merchandise was offered for sale by the packers included the said charge, among other things. It is the Government’s position here that the offered price was a “package” price, so to speak, and that the 20 per centum charge was an inseparable part thereof. It is the importers’ position that the said charge was an export tax, or in the nature of such a tax, which accrued only upon exportation of the goods and, hence, was not part of the export value within the meaning of the statute.

In support of its position, the Government urges that I. A. P. I. was the real seller of the merchandise in each instance; that it was not merely a governmental agency but a- commercial organization, and counsel for the Government points to the decrees which empowered I. A. P. I. to acquire and sell goods. There is no doubt that I. A. P. I. had very sweeping powers, but regardless of what it was empowered to do, the record shows that the actual impact of I. A. P. I. upon the business of selling cannéd corned beef in Argentina for export to the United States was that of a governmental instrumentality whose intervention in the business was regulatory and revenue-producing, and that although in form it may have clothed itself with the title of seller for security reasons, nevertheless, it actually assumed none of the duties, responsibilities, or aspects of a seller.

In our view, the court below was correct in finding that “sales and offers for sale of canned corned beef for export to the United States were made by the packers or producers thereof and such sales or offers were not made by I. A. P. I.”

Whether I. A. P. I. is considered to be the seller or not, the argument is, nevertheless, made on behalf of the Government that the 20 per centum charge was part of the purchase price—

* * * because it originates when that purchase price is agreed to by the American importer and the packer. It is just as much a part of that price as the item for overhead which goes into the packer’s cost. Therefore, it accrues not at the time of exportation but at the time that the agreement is made and as it accrues at that time it does not make any difference whether you call it part of the purchase price or an export tax or something in the nature of an export tax, under the Atlas Trading Company case [Atlas Trading Co. v. United States, 26 Cust. Ct. 652, Reap. Dec. 7989] and others it is a non-deductible item. It doesn’t make any difference when the purchase price is paid whether at the time of exportation or at the time of the original contract, or even afterwards, the 20 percent has been in there from the beginning and has accrued from the beginning.

It is our opinion that neither the record facts nor the law applicable to the situation supports the statements made by Government counsel. The record establishes, and the court below found, that the 20 per centum I. A. P. I. charge accrued only when the merchandise was exported from Argentina. Besides direct evidence of this fact contained in the record, there is evidence implicit in the fact that canned corned beef could be sold for exportation to the United States by the packers on an “f. a. s.” basis, or “free alongside" the exporting vessel, without the requirement of the payment of the 20 per centum charge, but that in such case the burden was upon the purchaser to pay the charge before the merchandise could be exported. It appears, however, that for the convenience of all concerned, it was customary for the packer to offer and sell canned corned beef on an f. o. b. basis and to pay all charges and secure the necessary permits.

Any reading of the provision for export value contained in section 402 (d) of the Tariff Act of 1930 must reveal that the value therein contemplated is for merchandise “in condition, packed ready for shipment to the United States,” that is to say, a value including the per se value of the goods and only those costs, charges, and expenses which accrue up to the time when the merchandise is in the said condition. Any costs, charges, or expenses, other than the foregoing, even though included in the offered price, are not part of the export value for tariff purposes. See United States v. New England Foil Corp., 10 Cust. Ct. 596, Heap. Dec. 5856, and Henry D. Gee Co. v. United States, 24 Cust. Ct. 508, Reap. Dec. 7772.

It is clear that the 20 per centum I. A. P. I. charge, as well as the other nondutiable charges which have been conceded by the Government not to be part of the export value, accrued after the merchandise was “in condition, packed ready for shipment-to the United States,” and the finding of the court below that it was not part of the market value of the merchandise is concurred in.

This leaves for consideration only the question of whether the excess of money paid by the importers of canned corned beef over the amount received by the packers, resulting from the foreign exchange control exercised by I. A. P. I. and other Argentine governmental agencies or instrumentalities, is properly part of the export value.

The theory of counsel for the importers, who raise this point, is explained in the brief filed on behalf of the importers as follows:

The documentary evidence in the case at bar establishes that the packers of canned corned beef were required by Argentine law to invoice their sales in United States dollars, and that United States importers of said commodity were required to pay for it in United States dollars. It is also established that the United States importers did not pay these United States dollars to the packers from whom they purchased, but paid them, as required by law, to the intervening governmental agency I. A. P. I. I. A. P. I., after first deducting the charge imposed by it upon the exportation of the merchandise and the export sales tax, remitted to the packers the balance in Argentine pesos, converted from dollars at the official rate of exchange of U. S. $.297733 for each Argentine peso.

United States importers were compelled to pay sufficient United States dollars not only to cover the packers’ net return in pesos converted at the official rate of exchange, but also the governmental exactions imposed upon exports. United States importers, under permissive regulations, could have purchased canned corned beef and paid to the packers the amount the latter received, in pesos obtained by purchasing them with United States dollars in the open market at the free rate of exchange, if they wished the merchandise to own or to sell in Argentina, and did not wish to export it.- Thus, by exporting the merchandise an exaction, measured by the difference between the official and the free rates of exchange, was imposed upon exportations by this governmental intervention, which resulted in a considerably higher cost for the merchandise.

The error in this reasoning is in the fact that, according to the record, home consumption transactions were not convertible into export transactions at the will of the purchaser. The record indicates that one was not free to purchase canned corned beef in Argentina with pesos obtained at the free rate of exchange and then determine to export it to the United States. Only canned corned beef of the “exportable surplus” could be purchased for exportation.

Counsel for the importers have cited as involving an analogous situation the case of Atlas Trading Co. v. United States, 26 Cust. Ct. 652, Reap. Dec. 7989. A material difference in the facts of that case is to be found in the fact that the wool hooked rugs there involved were freely offered for sale for exportation to the United States by the manufacturers thereof in Chinese yuan dollars, whereas in the case at bar the merchandise was freely offered for sale for exportation to the United States only in United States dollars. One could settle his obligations on an export transaction in the Atlas case, sufra, in Chinese yuan dollars if he did not export the goods. In the case at bar, the only settlement permitted on an export transaction was in United States dollars.

The valuation sections of the tariff act recognize that different values may obtain for the same merchandise when sold for home consumption and when sold for exportation to the United States, and consequently sections 402 (c) and (d) were enacted to cover those situations. The Argentine market for canned corned beef is a very apt illustration of those differences.. If canned corned beef were purchased for home consumption, it could be purchased in Argentine pesos obtained in the open market at the free rate of exchange., but if it were purchased for exportation to the United States, the transaction had to be consummated in United States dollars. It was tbe character of the transaction, i. e., for home consumption or for export to the United States, which determined the currency of offer. To hold as requested by counsel for the importers would be to find that at the time of exportation of the canned corned beef in question such or similar merchandise was freely offered for sale for exportation to the United States at a price expressed in Argentine pesos, which simply was not true.

Since the offers for sale for exportation to the United States were unquestionably made only in United States dollars, and offers for sale for home consumption were made in Argentine pesos, the only appraisement purpose for which the foreign currency may be converted into United States dollars is for comparison of the foreign value with the export value to determine which is higher.² In this situation, it is apparent that whether the conversion be made at either the official or free rates, the export value is the higher of the two in each case.

We adopt and incorporate herein by reference formal findings of fact Nos. 1 to 20, inclusive, made by the court below, and we adopt and incorporate herein by reference conclusions of law Nos. 1 to 3, inclusive, made by the court below.

The decision and judgment of the court bélow are therefore affirmed, and judgment will issue accordingly.

Instituto Argentino de Promoción del Intercambio (Argentine Institute for the Promotion of Trade).

•

As these are cross-appeals, the plaintiffs below will be referred throughout this opinion as the “importers,” and the defendant below will be referred to as the “Government.”

1

Of. the following excerpts from the opinion of our appellate court in the Graham & Zenger, Inc., case, supra:

* * * Clearly all purchasers are not freely offered a price for the reason that those who purchase for home consumption are not free to dispose of the property they buy in all markets. The mandate of the Belgian Government which precludes such purchaser from disposing of his glassware for any use save that of home consumption clearly makes the sale conditional. * * *

We do not deem it necessary to discuss the cases relied upon in the opinion of the trial judge, for the reason that generally speaking they all lay down the principle that a foreign market is controlled when restrictions are imposed on the resale, free use, dominion over the merchandise, or confining of sales to selected purchasers.

* * * So here, the fixing of a minimum price for glassware is not of itself sufficient to preclude a finding of foreign value, but in this case there was a restriction on glassware sold for home consumption which followed the merchandise to its use. * * *

* * * Wherever a restraint is imposed upon the use of purchased goods there can be no free market, regardless of whether such restraint has been imposed by the sovereign or a private association, cartel, or syndicate. The very essence of freedom is taken from a sale of goods accompanied by any restraint with respect to its resale, use or other disposition, regardless of the source of such restraint. * * *

2

Customs Manual, Edition of 1943, sec. 14.2 (ft); Klingerit, Inc. v. United States, 14 Cust. Ct. 435, Reap. Dec. 6159; United States v. Gothic Watch Co., 23 Cust. Ct. 235, Reap. Dec. 7712.