HQ 0222049 - Protest No. 1001-9-005205; request for further review; protest against denial of 19 U.S.C. 1520(c)(1) reliquidation request; negligent inaction; concealed shortages; 19 CFR 158.5 - United States International Trade Commision Rulings

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HQ 222049

June 17, 1991

LIQ-9-01 222049 GG

CATEGORY: ENTRY LIQUIDATION

U.S. Customs Service
Protest and Control Section
6 World Trade Center, Room 762
New York, New York 10048

RE: Protest No. 1001-9-005205; request for further review; protest against denial of 19 U.S.C. 1520(c)(1) reliquidation request; negligent inaction; concealed shortages; 19 CFR 158.5

Dear Sir:

This is in response to your request for further review of the protest referenced above.

FACTS:

Protestant entered merchandise between March 31, 1988 and May 2, 1988. All of the entries were liquidated on May 13, 1988. On April 4, 1989, protestant filed a 19 U.S.C. 1520(c)(1) reliquidation request, stating that due to a clerical error, more merchandise had been included on the invoice that was used to make entry, than had actually been shipped. This concealed shortage resulted in the protestant paying duties on merchandise that it did not import. To substantiate its claims, on June 27, 1989 protestant sent Customs its "edit lists", which were prepared by the protestant and detailed all of the shortages. The first of these lists was dated March 31, 1988, the last May 9, 1988. The protestant did not file a discrepancy report and declaration on Customs Form 5931. Customs denied the reliquidation request on August 2, 1989. Protestant on October 3, 1989, protested this denial.

ISSUE:

Whether entries may be reliquidated under 19 U.S.C. 1520(c)(1), when the entries included merchandise that appeared on the invoice but was not included in the shipment, and the information submitted by the protestant to substantiate the shortages indicated that the protestant knew of the shortages prior to the liquidation of the entries?

LAW AND ANALYSIS:

The Customs Service will make an allowance in the assessment of duties for deficiencies in the contents of packages, when, before the liquidation of the entry becomes final, the importer files a discrepancy report with Customs and the district director satisfies himself as to the validity of the claim. 19 CFR 158.5. One of the questions raised by the protest at issue is whether the protestant filed a discrepancy report with Customs before the liquidation of the entries became final.

The protestant never filed the type of discrepancy report that is referenced in 19 CFR 158.5: a Customs Form 5931. It did, however, submit its own "edit lists" which listed the shortages. The sufficiency of this alternative type of discrepancy report will be discussed after the timeliness of its submission to Customs is determined.

As noted above, discrepancy reports have to be filed before the liquidation of the entry becomes final. Generally, a liquidation becomes final 90 days after the date of liquidation, unless a timely protest is filed. See 19 U.S.C. 1514(a); 19 CFR 159.9(c)(iii); Occidental Oil & Gas Co. v. United States, Slip Op. 89-40 (CIT 1989). Under this rule, since the protestant did not protest the liquidation, the liquidation of the entries would have been final in mid-August of 1988, which preceded the filing of the edit lists by approximately 10 months. A liquidation is not considered final, however, if a timely and meritorious claim for reliquidation is filed under Section 520(c)(1) of the Tariff Act of 1930, as amended (19 U.S.C. 1520(c)(1)). See Customs Service Decision (C.S.D.) 84-42; Universal Cooperatives, 715 F.Supp 1113 (CIT 1989). 19 U.S.C. 1520(c)(1) permits the reliquidation of an entry to correct clerical errors, mistakes of fact, or other inadvertences in the entry or liquidation not amounting to an error in the construction of a law, which are adverse to the importer, manifest from the record or supported by documentary evidence, and have been brought to Customs' attention within one year after the date of liquidation. The protestant filed a timely 19 U.S.C. 1520(c)(1) request, which Customs denied, and is currently protesting Customs' refusal to reliquidate under this provision. The merits of its request are at issue.

Protestant's original 19 U.S.C. 1520(c)(1) request, filed by its customhouse broker on April 4, 1989, stated that "through a clerical error duty was paid on merchandise which was never imported". According to the broker, the clerical error was the act of listing on the entries merchandise that had been included on the invoice but had not actually been a part of the shipment. This argument fails because case law has established that there is no clerical error where words and figures are entered as intended by the writer, and interpreted by Customs with the meaning and effect which were intended by the writer. See United States v. Wyman & Co., 4 Ct.Cust.Appls. 264, T.D. 33485 (1913). It was the intention of the preparer of the entries to list those invoiced items which, it was subsequently revealed, were not shipped. Customs correctly carried out this intention when it included the missing items in its final ascertainment and assessment of duties on the merchandise covered by those particular entries. Clearly, no evidence has been presented which would support the allegation of clerical error.

In its protest of Customs' refusal to reliquidate under 19 U.S.C. 1520(c)(1), the protestant abandoned the clerical error argument and presented a new reason why Customs should have reliquidated under that provision, namely, there was a mistake of fact "based solely upon the importer's unawareness of the hidden shortages prior to liquidation." To support its position, protestant cites the case of C.J. Tower & Sons of Buffalo, Inc. v. United States, 68 Cust.Ct. 17, C.D. 4327, 336 F.Supp 1395 (1972), aff'd. 61 CCPA 90, C.A.D. 1129, 499 F.2d 1277 (1974), in which a mistake of fact was defined as "a mistake which takes place when some fact which indeed exists is unknown, or a fact which is thought to exist, in reality does not exist". This new position of the protestant of necessity must fail, because the documents supplied to Customs by the protestant clearly show that the protestant knew of the hidden shortages well before liquidation. The edit lists, which the protestant routinely prepares upon receipt of imported merchandise, and which in this case were submitted to Customs with its reliquidation request to substantiate the concealed shortages, were all completed by May 9, 1988, at least 4 days prior to liquidation of the entries. Consequently, these facts do not support the contention that there was a mistake of fact on account of the protestant being unaware of the shortages until after liquidation.

In a meeting with Customs on May 2, 1991, the protestant's attorneys argued that the entries should be reliquidated because the ignorance of both the importer and Customs of the concealed shortages at the time of entry constituted a mistake of fact that was correctable under 19 U.S.C. 1520(c)(1). When asked why the protestant had failed to file the required Customs Form 5931 upon discovery of the discrepancy, the attorneys explained that the protestant was unfamiliar with the Customs regulations.

The protestant's latest argument would have been more persuasive if the protestant had not detected the concealed shortages until more than 90 days after liquidation of the entries. Such was the case in C.J. Tower, where the importer learned only after the liquidation had become final that its merchandise was to be used for a purpose which would have entitled it to duty-free entry. Clearly the mistake in that situation was of the kind 19 U.S.C. 1520(c)(1) was designed to correct, i.e., a factual mistake whose late discovery rendered correction under other provisions of the Customs law impossible. See Hearings on H.R. 5505 before the Senate Committee on Finance, 82d Cong., 2d Sess., 30 (1952); Hearings on H.R. 1535 before the House of Representatives Committee on Ways and Means, 82d Cong., 1st Sess., 171 (1951). In contrast, the current protestant's pre-liquidation discovery of the shortages left it with more than 3 months to take advantage of the procedure that had been established in 19 CFR 158.5 to enable an importer to obtain a refund of duties paid on merchandise it had never imported, i.e. filing a Customs Form 5931. This procedure had also been clearly outlined in C.S.D. 78-199. The protestant's failure to file the required form during that 3-month period constituted negligent inaction.

In HRL 725690, dated April 8, 1986, Customs stated that "[c]ases involving negligent inaction almost always involve a situation where the importer has not come forward with a reasonable explanation why some required act was not performed." For example, in C.S.D. 80-250, the importer's failure to respond to several requests from Customs for additional information to aid Customs in determining the value of the merchandise was not a mistake of fact or inadvertence for purposes of a 19 U.S.C. 1520(c)(1) reliquidation claim. The failure to provide the requested information or to protest the liquidation in a timely manner was held to constitute negligent inaction. Since the importer in C.S.D. 80-250 did have the necessary paperwork at his office, the facts did not fall within the guidelines set down in that case, which were that a failure to act may be correctable under 19 U.S.C. 1520(c)(1), when the failure is coupled with another significant factor, such as a misunderstanding of the facts, or the inability of the importer to obtain documentation to establish a claim. Similarly, the current protestant's failure to file the Customs Form 5931 within 90 days after liquidation can only be attributed to negligence on its part, because it knew of the shortages before liquidation and could have used the information contained in its edit lists to prepare the required form. The protestant's explanation that it was ignorant of the Customs Regulations is not a mitigating factor, because ignorance of the law is not a ground for reliquidation under 19 U.S.C. 1520(c)(1). See PPG Industries, Inc. v. United States, 7 CIT 118, 126 (1984).

The protestant has failed to demonstrate that there was a clerical error, mistake of fact, or other inadvertence in the entries or their liquidation which would warrant a reliquidation under 19 U.S.C 1520(c)(1). Consequently, the liquidation of the entries in question became final 90 days after liquidation occurred on May 13, 1988, and since the protestant failed to submit a completed Customs Form 5931 during that period, as required by 19 CFR 158.5, no allowance for the concealed shortages can now be made. Customs's earlier decision to deny the reliquidation request was correct, and protestant's protest must be DENIED.

The denial of protestant's 19 U.S.C. 1520(c)(1) reliquidation request was not based solely, as the protestant contends, on its failure to supply an executed Customs Form 5931. That particular request was properly denied because the protestant failed to prove that there was a clerical error, mistake of fact, or inadvertence in the entries or liquidation of the entries. Had one of these three factors been present, then it would have been the prerogative of the district director to determine if the edit lists alone would have sufficed to establish the discrepancy, or if the filing of a Customs Form 5931 was necessary. See Treasury Decision 78-199.

HOLDING:

Entries containing concealed shortages may not be reliquidated under 19 U.S.C. 1520(c)(1), where the protestant has failed to establish that there was a clerical error, mistake of fact, or inadvertence in the entries or their liquidation.

Sincerely,

John Durant
Director, Commercial

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