HQ 0545015 - Dutiability of quota payments made to unrelated third party quota holder - United States International Trade Commision Rulings

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HQ 545015
August 3, 1993
VAL CO:R:C:V 545015 ILK

CATEGORY: VALUATION

RE: Dutiability of quota payments made to unrelated third party quota holder

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, ----- 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 (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 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

...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

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