HQ 0222781 - Request for refund of duties paid on personal property entered into Customs territory for personal use; reconsideration of denied protest; 19 CFR 174.12; 19 CFR 174.23; San Francisco Newspaper Printing Co. v. U.S. - United States International Trade Commision Rulings

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HQ 222781

September 3, 1991

BAG-5-02-CO:R:C:E 222781 TLS

CATEGORY: ENTRY LIQUIDATION

Mr. Jerome Rushka
3938 Wm. Dehaes #2099
Irving, Texas 75038

RE: Request for refund of duties paid on personal property entered into Customs territory for personal use; reconsideration of denied protest; 19 CFR 174.12; 19 CFR 174.23; San Francisco Newspaper Printing Co. v. U.S.

Dear Mr. Rushka:

The above-referenced letter has been received by this office for consideration. We have considered the points raised by your letter. Our decision follows.

FACTS:

You entered a 1984 model Toyota van into U.S. Customs territory from Canada. It was your intention at the time to become a permanent resident of the United States, though you had not resided here before. A job offer in Texas is the reason for your move to this country. The date of entry is August 14, 1990. Upon entry through the Dallas Customs port you paid a duty of $75 on the vehicle. You state that the van is for personal use while residing in this country.

On two separate occasions you wrote to Customs officials seeking a refund of the duty paid, contending that the van is entitled to duty-free status under 19 CFR 148.45 (1990). You claim that you were a nonresident at the time of entry which qualifies you for an exemption from duty under chapter 98 of the Harmonized Tariff Schedule of the United States Annotated (HTSUSA). The Dallas Customs office denied your initial request, upon which you then sought redress from the Houston Customs regional office. Houston Customs responded on September 25, 1990, with a ruling that denied your request for refund and affirmed the decision of the Dallas district. The Houston office reasoned that you became a resident under U.S. Customs laws when you made Texas your permanent home and retained a permanent job there.

On October 17, 1990, you wrote this office seeking further consideration of your request for a refund.

ISSUE:

Whether the Customs Service may exercise jurisdiction over a protest that has been denied.

LAW AND ANALYSIS:

Customs Regulations section 174.12 governs situations where an individual wishes to seek further consideration (a protest) of a Customs decision. A person may also request further review of a protest decision in accordance with the regulations. Under 19 CFR 174 the following is provided:

174.12 Filing of protests.

(a) By whom filed. Protests may be filed by: (2) Any person paying any charge or exaction;...

....

(e) Time of filing. Protests shall be filed, in accordance with section 514, Tariff Act of 1930, as amended (19 U.S.C. 1514), within 90 days after...: (2) The date of the decision...;

174.23 Further review of protests.

A protesting party may seek further review of a protest in lieu of review by the district director by filing, on the form prescribed in 174.25, an application for such review within the time allowed and in the manner prescribed by 174.12 for the filing of a protest....

To the extent that your case has been considered by both the Dallas district office and the Houston regional office, we find that this protest has been denied as of September 25, 1990. Once a protest has been denied, the Customs Service ceases to have jurisdiction over the matter. In fact, at least one court case has ruled as such. In San Francisco Newspaper Printing Co. v. United States, 9 CIT 517 (1985), the court held "[o]nce Customs mailed the denial of [a protest, there are] but two courses [to] pursue: to abandon the protest, or to bring an action in this Court." Thus, at this juncture, your option is to file a claim with the U.S. Court of International Trade if you wish to pursue the matter any further. We sympathize with the dilemma of having to deal with a variety of procedural hurdles in attempting to enter your vehicle into U.S. Customs territory, but we must follow our own rules to maintain integrity and fairness in the system.

As for the substantive issue at bar, without providing a repetitive recitation of the reasons for denial of your claim, we do agree with the decision of the Houston office. Your relocation to the United States establishes your residency in this country under Customs regulations. Furthermore, we have interpreted "non-residency" under this provision to mean an intent to remain in this country only temporarily and not enter your vehicle into the commerce of the United States.

Among the acts you have done which demonstrate your intent to enter the vehicle into the commerce of this country are your attempts to comply with Environmental Protection Agency and Department of Transportation requirements for vehicles imported into the country on a permanent basis, the registration of your vehicle in the state of Texas, and your application for a license to operate the vehicle in the state of Texas for a period longer than 90 days. Notwithstanding your own admission of the intent to reside here permanently, these factors weighed significantly in the decisions reached by Dallas and Houston. Thus, you do not qualify for duty-free treatment under 19 CFR 148.45 on the entry of your vehicle. Again, we regret that you had to deal with the many procedural guidelines and rules that accompany this process, but we cannot make an exception in this case.

HOLDING:

Customs cannot exercise jurisdiction over a protest after it has been denied. The decision of Houston Customs regional office remains intact.

Sincerely,

John Durant, Director

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