VAL CO:R:C:V 545015 ILK
---------------------
----------------
---------------
-------------------
RE: Dutiability of quota payments made to unrelated third party
quota holder
Dear ---------:
This is in response to your letter of June 12, 1992
(hereinafter referred to as the "request"), and your meeting with
members of my staff on December 3, 1992. On behalf of your
client -- ------ ---- Inc. (hereinafter referred to as the
"importer"), a U.S. company, you request a prospective ruling
regarding the dutiability of certain quota costs.
FACTS:
The subject merchandise is wearing apparel imported from
Macau. In 1990 the importer directed its Hong Kong agent, -----
- ------- ------- (hereinafter referred to as the "agent"), to
purchase temporary and permanent textile quota for the
exportation of wearing apparel from Macau to the U.S. The agent
purchased 12,500 dozen permanent quota for category 647/648 from
an unrelated quota holder, ---- ---- ------- -------, Ltd.
(hereinafter referred to as "S.H."). The importer reimbursed the
agent for the cost of the quota. Due to Macau laws prohibiting a
foreign entity from holding quota, the agent directed S.H. to
transfer the quota to ---- --- ------- -------- Ltd. (hereinafter
referred to as the "seller"), a Macau manufacturer of wearing
apparel, unrelated to the importer and S.H., temporarily until
the importer could incorporate ------- (hereinafter referred to
as "quota holder"), its quota holder/agent in Macau. For the
purposes of this ruling, it is assumed that S.H. is unrelated to
the seller. When the agent purchased the quota from S.H. and had
it transferred to the seller, the parties entered into an
agreement whereby the seller agreed to transfer the permanent
quota to the quota holder, or any other designated entity, upon
the importer's instruction. This agreement provided that the
seller would use up the quota on or before August 31, 1990, and
procure the allocation of the same quantity of the same quota for
the year beginning January 1991.
We have been informed by counsel on behalf of the importer
that if quota allocated to an entity is not used up, that same
entity may be penalized or restricted in obtaining quota the
following year. According to counsel for the importer, the
procurement of the quota for the year beginning January 1991
required S.H. to go through the procedures of ensuring that it
would obtain the 1991 quota allocation from the Macau government
in the event the transfer to the quota holder was not effected
prior to the end of 1990, and that the procedures did not require
S.H. to purchase the quota from the government. The transfer
described in the agreement has taken place and the quota holder
is the record owner of the permanent quota. The seller was not
given any payment for this transfer. The importer has provided
documentation of the transfers of permanent quota and payment to
S.H. for the quota. The importer plans to purchase wearing
apparel from the seller on an ex-quota basis and the necessary
quota will be provided by the quota holder. This ruling request
is prospective within the meaning of 177.1, Customs Regulations
(19 CFR 177.1) in that at the time of the request the importer
had not entered into transactions with the seller in which it
purchased apparel from the seller on an ex-quota basis.
ISSUE:
Whether, under the circumstances presented, quota charges
are part of the transaction value of the imported merchandise.
LAW AND ANALYSIS:
The preferred method of appraisement is transaction value
which is defined by 402(b)(1) of the Tariff Act of 1930, as
amended by the Trade Agreements Act of 1979 (TAA, 19 U.S.C.
1401a(b)) as "the price actually paid or payable for the
merchandise when sold for exportation to the United States..."
plus certain additions specified in 402(b)(1) (A) through (E).
The term "price actually paid or payable" is defined in TAA
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 payment for quota to S.H. is not a payment to the seller or a
party related to the seller, and it is not one of the five
additions described in 402(b)(1) (A) through (E). Therefore
there is no authority to include the quota cost in the
transaction value of the imported merchandise. In TAA No. 6
dated September 18, 1980, we stated that quota payments made by
the buyer to a third party quota holder unrelated to either the
buyer or the seller, are not part of the price actually paid or
payable.
Furthermore, Customs has held that quota payments made to a
third party unrelated to the seller of the merchandise, where
such payments are not remitted in any way, directly or
indirectly, to the seller of the merchandise, the quota payments
are not part of the price actually paid or payable for the
imported merchandise and do not constitute part of the
transaction value of imported merchandise. See e.g. Headquarters
Ruling Letter (HRL) 543655 dated December 13, 1985, HRL 543616
dated October 1, 1985, TAA No.30 dated June 11, 1981 and TAA No.6
dated September 18, 1980. In Generra Sportswear Company v.
United States, 905 F.2d 377 (Fed. Cir. 1990), the court held that
payments for quota made to the seller of merchandise may properly
be included in transaction value. Accordingly, in the instant
case, as the quota payment was made to a third party unrelated to
the seller, and was not remitted to the seller, the quota cost
incurred with respect to the imported merchandise is not included
in the transaction value of the imported merchandise. This
ruling is limited to the 12,500 dozen permanent quota for
category 647/648 now held by the quota holder, which was
purchased from S.H. in 1990.
HOLDING:
Under the circumstances presented quota charges for which
payments are not remitted to the seller of the imported
merchandise either directly or indirectly, are not included in
the transaction value of the imported merchandise.
Sincerely,
John Durant, Director
Commercial Rulings Division