HQ 0544971 - Dutiability of hedging costs paid by importer - United States International Trade Commision Rulings

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HQ 544971
October 20, 1993
VAL CO:R:C:V 544971 ILK

CATEGORY: VALUATION

RE: Dutiability of hedging costs paid by importer

This is in response to your letter of April 2, 1992 (hereinafter referred to as the "request"). On behalf of your "importer") you request a ruling regarding the dutiability of hedging costs paid by the importer to a related foreign manufacturer (hereinafter referred to as the "seller") or on behalf of the seller, as well as the dutiability of hedging costs incurred by the importer on its own behalf. According to your letter of September 3, 1992, you have withdrawn your request that the information supplied in the request be kept confidential and privileged. We regret the delay in responding.

FACTS:

The importer, a U.S. corporation is anticipating importing - related equipment components and parts which are made in [Europe] by the seller. In a telephone conversation with a member of my staff, on July 17, 1992, you stated that the seller may actually be any one of a number of related companies in Europe. The importer anticipates that importations will be made through various U.S. ports in 1992.

To date, the seller has been selling the merchandise in U.S. Dollars (USD) and has met the risk of currency exchange fluctuations by hedging the contracts, i.e. placing a forward contract on currency. The cost to the seller of the hedging has been included in the offered price of the merchandise, and has been included in the value declared for duty. The seller is now offering the importer the option of purchasing the merchandise either in USD or in Swiss Francs (SFr). If the importer pays in USD, as it has been doing, it will be charged a separate amount to cover the cost of hedging. In the July 17, 1992 telephone conversation with a member of my staff, you stated that the hedge is entered into by the seller either with a financial institution or in-house. In either event, the charge is passed on to the importer by the seller. If the importer pays in SFr, the importer hedges for its own account, in the U.S., also incurring a fee.

You request a ruling as to the dutiability of the hedging costs incurred by the seller and paid by the importer, and the hedging costs incurred by the importer on its own account. It is your position that none of the hedging costs described above are dutiable.

ISSUE:

Whether the amounts paid by the importer for hedging costs are included in the price actually paid or payable for the imported merchandise.

LAW AND ANALYSIS:

Transaction value is the preferred method of appraisement, and is defined in section 402(b)(1) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. 1401a(b); TAA) as the "price actually paid or payable for the merchandise" plus five enumerated statutory additions, which are not relevant here. We are assuming for purposes of this ruling that transaction value is the proper method of appraisement for the imported merchandise, although we note that the importer and the seller are related parties under section 402(g) of the TAA. Therefore, the transfer price between the importer and the seller is acceptable for transaction value purposes if it meets one of the tests set out in section 402(b)(2)(B). We do not have enough information to determine whether one of the tests has been met.

The term "price actually paid or payable" is defined in section 402(b)(4)(A) of the TAA as the "total payment...made, or to be made, for imported merchandise by the buyer to, or for the benefit of, the seller." It is the position of the Customs Service that all monies paid to the foreign seller, or a party related to the seller, are part of the price actually paid or payable for the merchandise under transaction value. See e.g. Generra Sportswear Co. v. United States, 905 F.2d 377 (Fed Cir. 1990); HRL 544640 dated April 26, 1991.

The Court in Generra, specifically held that "a permissible construction of the term `for imported merchandise' does not restrict which components of the total payment may be included in transaction value." Generra, 905 F.2d at 380. According to the Court's decision in Generra, as long as a "payment was made to the seller in exchange for merchandise sold for export to the United States, the payment properly may be included in transaction value, even if the payment represents something other than the per se value of the goods." 905 F.2d at 380. In this case hedging costs incurred by the seller alone, or by the seller to a third party, can reasonably be concluded to be for imported merchandise and thus part of the price actually paid or payable. The total payment by the importer to the seller includes the hedging costs. This position is consistent with the position taken by Customs in HRL 542984 dated April 8, 1983 in which we ruled that the cost of insurance premium payments which the manufacturer was required to obtain as a condition of the sale were part of the price actually paid or payable for the imported merchandise.

HOLDING:

Hedging costs paid by the importer to the seller are included in the price actually paid or payable for the imported merchandise. With respect to the costs incurred by the importer hedging for its own account, we agree with you that those payments are not made to or for the benefit of the seller, and thus are not included in the price actually paid or payable, under the terms of section 402(b)(4) of the TAA.

Sincerely,

John Durant, Director,
Commercial Rulings Division

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