CON-3-05/BAG-5-05
CO:R:C:E 223198 DHS
Regional Commissioner of Customs
Protest and Control Section
6 World Trade Center
Room 762
New York, New York 10048-0945
RE: Protest #1001-90-008599; Martin Strauss Airfreight Corp.;
9804.00.10 HTSUS; Tools of Trade
Dear Sir:
The above-referenced protest has been forwarded to this
office for further review. We have considered the points raised
by the protestant and your office. Our decision follows.
FACTS:
December 15, 1989: Certificate of Registration, customs
form (CF) 4455, was filed at J.F.K. International Airport.
Westrex Transportation Inc. (hereinafter, Westrex) has been
designated on this document to receive notification on the duty-
free status of these articles. Glenn Mallory agent for Martin
Strauss Airfreight Corporation (hereinafter, Martin Strauss)
signed this document.
December 18, 1989: Certificate of Registration was signed
by the customs officer at JFK International Airport and
registration number 1884 was assigned.
December 26, 1989: Articles, including assorted boxes and
transit cases filled with equipment utilized to test cable
installed by Telecom Barranquilla, a cable stationed in Columbia,
owned and operated by Empresa Nacional de Telecommunicationes
(herein called Telecom) were flown to Barranguilla, Columbia from
Miami, Florida, on Pan American.
February 18, 1990: Thomas E. Wills, a resident of the U.S.
and an engineer at AT&T, returned to the U.S. from Barranquilla,
Columbia after a two week stint.
May 22, 1990: Equipment in question was exported from
Barranquilla, Columbia.
May 24, 1990: The equipment was entered as duty-free under
9801.00.20 Harmonized Tariff Schedule of the United States
(HTSUS). The CF 7501 has Martin Strauss designated as the
importer of record and Westrex as the ultimate consignee.
July 23, 1990: A letter was received by U.S. Customs
Service from Westrex requesting that the entry number be changed
from 9801.00.20008 HTSUS to 9804.00.10 HTSUS.
September 14, 1990: The equipment in question was
liquidated under 9030.39.00 HTSUS/4.9%.
November 1, 1990: Martin Strauss, the broker for AT&T,
filed a protest disputing the application of this provision. The
claimant contends that the equipment should be reliquidated
according to 9804.00.10 HTSUS, as tools of trade.
April 15, 1991: Martin Strauss filed an amendment to the
protest providing additional information including CF 7501 and CF
29.
ISSUE:
May equipment exported from the U.S. by a corporation as
professional tools of trade be subsequently imported as duty-
free?
LAW AND ANALYSIS:
Professional books, implements, instruments, or tools of
trade, occupation or employment, may be allowed entry free of
duty and tax under the provisions of subheading 9804.00.10,
Harmonized Tariff Schedule of the United States (HTSUS) (19
U.S.C. 1202), and for such articles taken abroad by or for the
account of any person arriving in the U.S.. (19 CFR 148.53)
9804.00.10 HTSUS is considered a personal exemption
available only to individuals arriving in the U.S. from a foreign
country. Merchandise consigned to and entered by or for the
account of a firm does not qualify for this exemption. There is
no requirement of ownership by the individual in order to benefit
from the exemption. Therefore, merchandise of foreign
manufacture exported from the U.S. by an individual and
reimported by the same individual, even though actually owned by
the company by which such individual is employed, is eligible for
exemption from duty as tools of trade.
From the facts presented on the CF 4455, we deduce that Mr.
Wills, an employee of AT&T, spent a total of two weeks in
Barranquilla, Columbia during February, 1990. The equipment, on
the other hand, was exported from the U.S. to Columbia on
December 26, 1989, a month prior to the employee's arrival in
Columbia, and delivered and entered into the U.S. on May 24,
1990, over three months after the employee returned to the U.S.
It is not sufficient that the merchandise and the employee are
simultaneously in the country during some period of time.
Although this nexus must be shown, there is an additional
requirement that the articles and the employee come back into the
U.S. concurrently. Based upon the documentation presented, this
requirement has not been met.
Additionally, under 19 CFR 10.68, tools of trade eligible
for classification under 9804.00.10 HTSUS, must be registered on
CF 4455, Certificate of Registration, before exportation in the
name of the employee of the organization, by or for whose
account, the articles are shipped and returned. A firm may not
act as the agent of the individual employee for whom the
equipment is exported and reimported. The CF 4455 completed by
the importer designated Westrex as the company to receive the
certified form. Furthermore, Glenn Mallory, an agent for Martin
Strauss signed the CF 4455. Since the importer has failed to
even mention Mr. Wills on the document, the protestant also has
failed to comply with this regulation. Similarly, no reference
has been made to Mr. Wills on the 7501, entry summary, as
required for claiming duty-free status under 9801.00.20 HTSUS.
The subsequent filing of the CF 3299, a declaration for free
entry of articles not accompanying resident or nonresident, upon
the reentry of the articles into the U.S. does not correct these
deficiencies.
HOLDING:
The equipment which was exported from the U.S. by the
corporation and subsequently imported into the U.S. by the
corporation is not entitled to exemption from duty under
9801.00.20 HTSUS as tools of trade.
You are instructed to deny the protest. A copy of this
decision should be attached to the CF 19, Notice of Action, sent
to the protestant to satisfy the notice requirement of section
174.30(a), Customs Regulations.
Sincerely,
John Durant, Director
Commercial Rulings Division