Vicki Enterprises, Inc. v. United States

67 Cust. Ct. 480, 1971 Cust. Ct. LEXIS 2286
CourtUnited States Customs Court
DecidedSeptember 10, 1971
DocketR.D. 11750; Entry Nos. 887724, etc.
StatusPublished
Cited by6 cases

This text of 67 Cust. Ct. 480 (Vicki Enterprises, 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
Vicki Enterprises, Inc. v. United States, 67 Cust. Ct. 480, 1971 Cust. Ct. LEXIS 2286 (cusc 1971).

Opinion

MAT.if.T73 Judge:

These 41 appeals for reappraisement — which have been consolidated for trial — involve the dutiable value of certain field glasses that were manufactured by Carton Optical Industries, Ltd. of Japan (Carton),1 shipped by KanzoItoh&Co. of Japan (Kanzoltoh), and imported by plaintiff Vicki Enterprises, Inc. (Vicki). The parties are in agreement that export value as defined in section 402 (b) of the Tariff Act of 1930, as amended by the Customs Simplification Act of 1956, is the proper basis of appraisement.2 However, plaintiffs contend that such statutory values are the invoiced unit ex-factory prices exclusive of the invoiced amounts for buying commissions and inland charges, while defendant contends that the appraised values are the proper dutiable values.

We start with the basic principle that an appraisement is deemed separable where the evidence shows that a distinct and identifiable sum has been considered by the appraiser and included in the appraised value. E.g., United States v. Supreme Merchandise Company, 48 Cust. Ct. 114, 716-17, A.R.D. 145 (1962); United States v. Chadwick-Miller Importers, Inc., 54 CCPA 93, C.A.D. 914 (1967). Against this background, in 15 appeals,3 the appraisement was at the invoice unit values plus charges marked “X”, “A”, or “Y”, and as to those appeals, the parties agree that the appraisements are separable.

Beyond this, plaintiffs argue that the remaining appeals — with the exception of three which have been abandoned4 — are likewise separable, while defendant contends they are not. In 11 of these appeals,5 each of the invoices contains, with respect to the field glasses at issue, an ex-factory unit price, a total factory amount, separately itemized amounts for various inland charges and buying commission, and a red check mark by the appraiser next to the letter “D” accompanying these itemized inland charges and buying commission. By thus placing his red check mark next to the letter “D”, representing “dutiable,” the appraiser clearly indicated that he utilized the breakdown of charges [482]*482contained in the invoice and held dutiable items listed as inland charges and buying commissions. Hence, in fact, the appraiser found the value of the merchandise to be the invoiced unit value plus the items indicated as being dutiable — in which circumstance each of these appraise-ments is clearly separable. United States v. Gehrig, Hoban & Co., Inc., 54 CCPA 129, C.A.D. 924 (1967).

In four appeals,6 entry was made at a total f.o.b. price and the held glasses were appraised as entered. In each of these appeals, the importer indicated on the invoice its breakdown of the f.o.b. price into ex-factory price and added charges. However, the appraiser made no indication on the papers by markings or otherwise to indicate how he determined the appraised value — and these appraisements are hence not separable. What the court said in Concord Electronics Corp. v. United States, 66 Cust. Ct. 581, 583, R.D. 11744 (1971), is equally applicable with respect to these appeals:

The important point here, however, is that (in the absence of proof of what the appraiser did) separability is not applicable where the appraisement is made at unit f.o.b. values even though the invoices list ex-godown prices plus separate charges. * * * And the fact that a mathematical totaling of the invoice-value-plus-charges equals the appraised values does not establish the separability of the appraisement. * * *

In eight further appeals7 the merchandise was again entered at a total f.o.b. price and the field glasses were appraised as entered. In each of these appeals, the importer indicated on the invoice its breakdown of the f.o.b. price into ex-factory price 'and added charges. However, there is no indication on the invoice by markings or otherwise to indicate that the appraiser adopted the figures set out in the invoice. Nonetheless, plaintiffs rely on the fact that on a separate sheet of paper, wherein the importer set forth a breakdown of inland charges and/or buying commission, there appears the word “noted” written in red ink by the appraiser. Absent any explanation in the record, the word “noted” in such circumstances means, we think, that the appraiser has seen and taken notice of the importer’s statement; it does not indicate that the importer’s figures per se were adopted as part of the appraisement. It is quite true that “an appraisement is constructively separable where there is evidence to show that the appraiser in fact calculated value by adding charges to the invoice unit price * * Concord Electronics Corp. v. United States, supra, 66 Cust. Ct. at 583. But, given the situation in the present case, we cannot conclude that [483]*483the word “noted” placed on the separate paper by the appraiser constitutes such evidence.

With respect to those appeals where the appraisements are not separable, it was, of course, plaintiffs’ burden to show all elements of export value in accordance with the statutory requirements of section 402(b). Thus, plaintiffs were required to establish that the imported merchandise was freely offered for sale to all purchasers for exportation to the United States, in the principal markets of the country of exportation, in the usual wholesale quantities and in the ordinary course of trade, at the invoiced unit ex-factory prices. This burden plaintiffs have not attempted to meet. Accordingly, those appeals in which the appraise-ments are not separable must be dismissed.

This brings us to the 26 appeals where the appraisements are separable so that plaintiffs’ burden was limited to showing the non-dutiability of the stated inland and buying commission charges. On this phase the record is as follows: First, Mrs. Betty V. Ossola — the president and general manager of Yicki — testified for plaintiffs to the following effect: Yicki is primarily an importing concern that sells its product to trading stamp companies and as its general manager, Mrs. Ossola does most of the buying for Yicki, some of the selling, and performs all the ordinary duties attendant upon managing a company. In late 1957 or early 1958, Mrs. Ossola met in New York with Mr. Itoh of Ivanzo Itoh — -who had been recommended by the Japanese consulate— to discuss the possibility of his firm representing Yicki in its purchases of Japanese merchandise. The results of these discussions were embodied in a written agreement dated January 15,1958, between Yicki and Kanzo Itoh which reads:

Kanzo Itoh Trading Company, hereby agrees to perform the following services for Yicki EntekpRises, Inc., for which they will be paid a 5 % commission.
1) We shall contact various manufacturers, obtaining prices and other information.
2) We shall buy and accumulate all merchandise for shipment.
3) We Shall pay all expenses such as delivery charges to piers, customhouse fees, etc.
4) We shall prepare all necesary shipping documents.

On July 28, 1965, a written supplement to this agreement was entered into as follows setting forth the details of Kanzo Itoh’s obligations under the basic agreement:

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67 Cust. Ct. 480, 1971 Cust. Ct. LEXIS 2286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vicki-enterprises-inc-v-united-states-cusc-1971.