United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1993 HQ Rulings > HQ 0223198 - HQ 0223539 > HQ 0223198

Previous Ruling Next Ruling


HQ 223198

October 17, 1991

CON-3-05/BAG-5-05
CO:R:C:E 223198 DHS

CATEGORY: CONDITIONALLY FREE

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 ?

Previous Ruling Next Ruling

See also: