VAL CO:R:C:V 544669 ML
John -------------, Esq.
-------------s----
--------------ue
New York, NY ----------
RE: Bona Fides of a Buying Agency Where Principal Directs the
Agent to Retain Title and Bear Risk of Loss for the Imported
Merchandise
Dear Mr. ----------:
This is in response to your letter dated February 27, 1991,
requesting a ruling on whether the basis of appraisement for
imported merchandise will be transaction value, as represented by
the price paid by The ---------- ------------- Corporation,
(hereinafter referred to as "A--"), to an unrelated foreign
vendor, (hereinafter referred to as the "vendor"). You met with
representatives of this office on July 17, 1991.
FACTS:
According to your letter, A--, a company incorporated in the
state of New York, is owned by a group of retail department
stores and specialty stores. A-- provides a number of services
to the shareholder stores, one of which is foreign buying. A--
currently acts as a buying agent, with title to foreign
merchandise passing from the foreign seller to the shareholder
store, usually FOB-port of export. A-- arranges for
transportation and acts as importer of record on behalf of most
of the shareholder stores. For these services, A-- is paid a
service charge of between - percent and - percent of the purchase
price, generally decreasing as a shareholder store's purchases
increase. This service fee has been considered a nondutiable
charge.
Under the proposed agreement, A-- will continue to buy
foreign merchandise after first receiving an order or other
commitment from a shareholder store. The shareholder store will
advance money to A-- for the purchase. According to counsel, the
only difference in the duties performed by A-- under the proposed
arrangement is that A-- will take title to the merchandise in the
country of exportation and will retain title and risk of loss
until the merchandise is delivered in the United States to the
shareholder store or a domestic surface carrier acting on behalf
of a shareholder store. Currently, the shareholder store is the
importer of record. Under the proposed arrangement, A-- will be
the importer of record in most instances with delivery of the
merchandise subsequent to entry. In other instances, a
shareholder store will be the importer of record, with title
passing after importation but prior to the entry of the
merchandise. You state that A-- will sell merchandise to
shareholder stores at a price which will be the sum of the price
paid to the foreign vendor, international transportation,
clearance and related charges, duties and fees, and service
charge or mark-up based on the services rendered by A--.
ISSUE:
Whether a buying agency relationship will remain where the
principal directs it's agent to take title and risk of loss for
the imported merchandise.
LAW & ANALYSIS:
Although A-- and the shareholder stores are related parties
as that term is defined in 402(g) of the Tariff Act of 1930, as
amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C.
1401a(g)), for the purpose of this prospective ruling request, we
are assuming that transaction value will be applicable as the
basis of appraisement. The transaction value of imported
merchandise is defined in section 402(b) of the TAA as "the price
actually paid or payable for the merchandise when sold for
exportation to the United States," plus certain enumerated
additions. The "price actually paid or payable" is more
specifically defined in section 402(b)(4)(A) as:
The total payment (whether direct or
indirect...) made, or to be made, for
imported merchandise by the buyer to,
or for the benefit of, the seller.
The position of counsel for A-- is that since A-- will take
title to the imported merchandise and bear risk of loss until the
merchandise is delivered to the shareholder store (or a domestic
surface carrier acting on behalf of a shareholder store), the
transaction value of the imported merchandise should be based on
the price paid by A-- to the foreign vendor; this is the only
sale for export to the United States. Counsel for A-- contends
that there is a sale between A-- and the shareholder store.
As stated above, Counsel contends that the relationship
between A-- and the shareholder stores will remain the same in
all aspects of the transaction except that A-- will retain title
and bear risk of loss. We do not find that a sale of the
imported merchandise occurs simply because A-- will take title to
and bear risk of loss for the imported merchandise, as directed
by the shareholder stores. As before, the shareholder store will
pay for the merchandise prior to its exportation to the United
States, thereby furnishing consideration for the merchandise.
The contemplated transactions are still controlled by the
shareholder stores with A-- acting as an agent, carrying out the
instructions of its principal. Given the facts as stated by
counsel for A--, A-- cannot sell the merchandise to anyone other
than the shareholder store who purchased and pre-paid for the
imported merchandise. Clearly, the shareholder owns the goods
and has control over the disposition of those goods.
As stated above, the transaction value of imported
merchandise is the "price actually paid or payable for imported
merchandise when sold for exportation to the United States", plus
amounts enumerated in section 402(b)(1). Buying commissions are
not specifically included as one of the additions to the "price
actually paid or payable." It is clear from the statutory
language that in order to establish transaction value one must
know the identity of the seller and the amount actually paid or
payable to him. As stated in Headquarters Ruling Letter (HRL)
542141 (TAA #7), dated September 29, 1980, "...an invoice or
other documentation from the actual foreign seller to the agent
would be required to establish that the agent is not a seller and
to determine the price actually paid or payable to the seller.
Furthermore, the totality of the evidence must demonstrate that
the purported agent is in fact a bona fide buying agent and not a
selling agent or an independent seller.
In order to view the relationship of the parties as a bona
fide buying agency, Customs must examine all the relevant
factors. J.C. Penney Purchasing Corporation et al. v. United
States, 80 Cust. Ct. 84, C.D. 4741 (1978), 451 F.Supp. 973
(1978); United States v. Knit Wits (Wiley) et al., 62 Cust. Ct.
1008, A.R.D. 251 (1969). The primary consideration, however, "is
the right of the principal to control the agent's conduct with
respect to the matters entrusted to him." Dorf Int'l Inc., et
al. v. United States, 61 Cust. Ct. 604, A.R.D. 245, 291 F.Supp.
690 (1968). The degree of discretion granted the agent is an
important factor. New Trends Inc. v. United States, 10 CIT 637,
645 F. Supp. 957 (1986). The plaintiff bears the burden of proof
to establish the existence of a bona fide agency relationship and
that the charges paid were bona fide buying commissions. Monarch
Luggage Company Inc., v. United States, 13 CIT , Slip Op. 88-91
(1989).
In Pier 1 Imports, Inc. v. United States, 13 CIT_, Slip Op.
89-25 (February 23, 1989), the court emphasized that control over
the purchasing process was strong evidence that an agency
relationship exists. The court found the manner of payment to
establish that the agent purchased merchandise only at the
direction of the importer. In Pier 1 , the agent did not retain
the discretion to deduct commissions, freight charges, or bear
the risk of loss. The importer invoiced charges separately and
paid for them separately. Additionally, none of the commissions
inured to the benefit of the manufacturer. The court found that
the agent did not "purchase" the merchandise until after the
importer ordered the merchandise, and forwarded the funds
necessary for acquisition. Consequently, the agent operated only
at the bequest of the importer, not autonomously. Id. at 51.
The Court of International Trade in the case of New Trends
Inc., supra, set forth several factors upon which to determine
the existence of a bona fide buying agency. These factors
include: whether the agent's actions are primarily for the
benefit of the importer, or for himself; whether the agent is
fully responsible for handling or shipping the merchandise and
for absorbing the costs of shipping and handling as part of its
commission; whether the language used on the commercial invoices
is consistent with the principal-agent relationship; whether the
agent bears the risk of loss for damaged, lost or defective
merchandise; and whether the agent is financially detached from
the manufacturer of the merchandise.
The above-stated factors have been determining factors
applied by the courts to deny the existence of a buying agency
relationship in New Trends, Inc., supra, Jay-Arr Slimwear Inc.,
v. United States, 12 CIT , 681 F. Supp. 875 (1988), Rosenthal-
Netter,Inc. v. United States, 12 CIT , Slip Op. 88-9 (1988), 679
F. Supp. 21 (1988).
As presented, A-- currently acts as a buying agent. The
only proposed change to the relationship between A-- and its
principal is that A-- will now be directed by the principal to
take title and bear the risk of loss for the merchandise. A--
will continue to find foreign vendors to produce the merchandise
requested by the shareholder stores and arrange delivery terms
pursuant to the direction of the shareholder stores. We do not
find A--'s taking title to the merchandise, as directed by the
principals, negates the bona fides of the agency relationship.
To reiterate, the fact that A-- will take title to the
merchandise for a brief time does not mean that the merchandise
was sold to A--. A-- cannot sell the merchandise to anyone other
than the shareholder store who purchased and pre-paid for them.
The shareholder owns the goods and has control over the
disposition of the goods. A-- will merely be performing two
additional functions at the shareholder stores' behest.
On the basis of the information you have provided regarding
the prospective transactions in question, if the actions of the
parties conform to their prior arrangements with the added
performance by A-- of the two functions described above, the
importer will still exercise the requisite degree of control over
the buying agent. Note, however, that the degree of control
asserted over A-- is factually specific and could vary with each
importation. The actual determination as to the existence of a
buying agency will be made by the appraising officer at the
applicable port of entry upon the presentation of the proper
documentation as described in TAA No. 7.
HOLDING:
In view of the foregoing, it is our conclusion that a buying
agency relationship will remain in effect where the
only change in the relationship is that the principal will
direct its agent to take title to, and bear the risk of loss for
the imported merchandise.
Sincerely,
John Durant, Director
Commercial Rulings Division