HQ 546056 - Internal Advice; alleged interest charges; T.D. 85-111 and Clarification; TAA #43; HRL 545277; price actually paid or payable; HRL 545663; Generra Sportswear Co.; Chrysler; written financing arrangement - United States International Trade Commision Rulings

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HQ 546056

March 22, 1996

RR:IT:VA 546056 KCC

CATEGORY: VALUATION

Director, Regulatory Audit Division
U.S. Customs Service
610 South Canal Street, 9th Floor
Chicago, Illinois 60607

RE: Internal Advice; alleged interest charges; T.D. 85-111 and Clarification; TAA #43; HRL 545277; price actually paid or payable; HRL 545663; Generra Sportswear Co.; Chrysler; written financing arrangement

Dear Director:

This is in response to your memorandum dated July 11, 1995 ( file AUD-1-O:A:SL: AAW), requesting internal advice concerning the dutiability of certain costs which the parties refer to as interest disclosed in your audit of North American Lighting, Inc. ("NAL"). A memorandum from the Port Director in St. Louis, Missouri, dated March 1, 1995, and NAL's position paper in response to the audit findings were taken into consideration in rendering this decision. We regret the delay in responding.

FACTS:

The importer, NAL, is in a joint venture with three parent companies, Koito Manufacturing of Japan ("Koito") (40% ownership), Ichikoh Industries of Japan ("Ichikoh") (10% ownership), and Hella North American Inc. ("Hella") (50% ownership), in which NAL purchases maintenance equipment and component parts from each of the parent companies, or sellers, for use in the manufacture of automotive lighting products. NAL's imports are appraised using transaction value. Your audit disclosed that NAL is reimbursing Koito and Ichikoh for certain costs referred to by the parties as interest.

You state that NAL reimburses Ichikoh for the alleged interest costs on substantially overdue items. You found that NAL reimbursed Ichikoh for three months during the period May 1990 to February 1993. We can not rule on these payments as no detailed information was presented by your office or NAL.

You state that NAL reimburses Koito for costs incurred by Koito due to NAL's delayed payment settlement. The terms of the sale are D/A 90 days after bill of lading for component parts and D/A 180 days after bill of lading for maintenance equipment. A "D/A" contract is a documents against acceptance financing arrangement. You were informed that Koito factors its account receivables from NAL to a foreign bank; Koito sells the NAL invoices to a foreign bank. The foreign bank then sends NAL a bill of exchange, which is signed and sent back to the foreign bank, showing acceptance. Therefore, you were informed that a transfer of ownership takes place between Koito and the foreign bank and, thereafter, at the end of the 90 or 180 day period, NAL pays the foreign bank for the imported merchandise.

You found that it is NAL's practice to pay invoices due in a particular month at the end of the month. At the end of the month, after payment of invoices to the foreign bank, NAL accrues in its books "interest" payments, based on NAL's calculation of the number of days late and the last "interest" rate charged by the foreign bank. After the foreign bank receives late payment on the NAL invoices, it charges Koito "interest" on those late payments which Koito makes directly to the foreign bank. After NAL makes payment for the invoices at the end of the month and after Koito pays the foreign bank for the accumulated "interest" for NAL's late payments, Koito sends NAL a payment status letter and spreadsheet. The payment status letter informs NAL of the total interest charged by the foreign bank and paid by Koito for the invoices paid in the last month and requests reimbursement for the interest charges from NAL. The spreadsheet shows each invoice paid late by NAL and calculates the total amount due per invoice. Your review disclosed that NAL directly reimburses Koito, not the foreign bank, for the costs incurred because of NAL's delayed settlement on an invoice by invoice basis. You state that approximately 94% of the invoices from May 1992 to March 1994 required a reimbursement.

You state the payments at issue made to Koito are indirect payments which are part of the price actually paid or payable. You contend that the submitted documents, referenced below, do not constitute a written financing arrangement and, therefore, do not meet the criteria set forth in T.D. 85-111, so that these costs are not excluded from the price actually paid or payable for the imported merchandise.

It is the position of the St. Louis Port Director that the charges at issue are not included in the price actually paid or payable because the criteria set forth in Treasury Decision (T.D.) 85-111 have been met. The Port Director argues that the payments made by NAL are, in effect, "interest" costs essentially paid to the foreign bank and are not associated directly with the cost of the imported merchandise. The Port Director states that the seller, Koito, does not receive a financial benefit since a previous transfer of ownership and the total cost of the merchandise already took place between the Koito and the foreign bank.

NAL states that the charges at issue do not constitute indirect payments nor are they part of the price actually paid or payable. Therefore, NAL states that the charges are not dutiable. NAL states that the charges are not incurred by Koito from its foreign bank. NAL states that charges were incurred by NAL for payment beyond the specified time period according to the terms of payment for the imported merchandise. NAL contends that the criteria set forth in T.D. 85-111 have been met. In support of this position, NAL has offered an invoice, a purchase order, and a General Terms and Conditions statement to be taken together as a whole as evidence of a written financing agreement. The General Terms and Conditions statement dated May 1, 1993, states that the payment for basic purchases is "90 days from Bill of Lading Date" and for molds for plastic products is "180 days from Bill of Lading Date." The General Terms and Conditions statement reads that "Interest will accrue on items past due from terms stated above."

ISSUE:

Whether the payments referred to by the parties as interest and made by importer, NAL, to the seller, Koito, are part of the transaction value of the imported merchandise.

LAW AND ANALYSIS:

For the purpose of this response, we are assuming that transaction value is the appropriate basis of appraisement. Transaction value is defined in ?402(b)(1) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (19 U.S.C. merchandise" plus amounts for the five enumerated statutory additions in ?402(b)(1). The parties are related, therefore pursuant to ?402(b)(2)(B) of the TAA, transaction value is acceptable only if an examination of the circumstances of the sale indicates that the relationship between the NAL and Koito did not influence the price actually paid or payable or if the transaction value of imported merchandise closely approximates the transaction value of identical or similar merchandise in sales to unrelated buyers in the U.S. or the deductive or computed value for identical or similar merchandise. This ruling does not address the acceptability of transaction value.

The term price actually paid or payable is defined in

...total payment (whether direct or indirect, and exclusive of any costs, charges, or expenses incurred for transportation, insurance, and related services incident to the international shipment of the merchandise...) made, or to be made for the imported merchandise by the buyer to, or for the benefit of, the seller.

In this case, the payments made by NAL were paid directly to Koito, not the foreign bank. This is evidenced by the payment status letter from Koito to NAL dated February 14, 1993, which states that:

The bank interests have been incurred by Koito due to your [NAL] delayed D/A settlement.

Your prompt payment of the interest (X Yen as of January) to Koito would be highly appreciated.

There is a rebuttable presumption that all payments made by a buyer to a seller, or party related to a seller, are part of the price actually paid or payable. See, HRL 545663 dated July 14, 1995. This position is based on the meaning of the term "price actually paid or payable" as addressed in Generra Sportswear Co. v. United States, 8 CAFC 132, 905 F.2d 377 (1990). In Generra, the court considered whether quota charges paid to the seller on behalf of the buyer were part of the price actually paid or payable for the imported goods. In reversing the decision of the lower court, the appellate court held that the term "total payment" is all-inclusive and that "as long as the quota 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." The court also explained that it did not intend that Customs engage in extensive fact-finding to determine whether separate charges, all resulting in payments to the seller in connection with the purchase of imported merchandise, were for the merchandise or something else.

Additionally, we note that in Chrysler Corporation v. United States, CIT Slip Op. 93-186 (September 22, 1993), the Court of International Trade applied the Generra standard and determined that although tooling expenses incurred for the production of the merchandise were part of the price actually paid or payable for the imported merchandise, certain shortfall and special application fees which the buyer paid to the seller were not a component of the price actually paid or payable. With regard to the latter fees, the court found that the evidence established that the fees were independent and unrelated costs assessed because the buyer failed to purchase other products from the seller and not a component of the price of the imported engines. Therefore, this presumption may be rebutted by evidence which clearly establishes that the payments, like those in Chrysler, are completely unrelated to the imported merchandise.

Based on the evidence presented the imported merchandise was not actually sold to the bank but rather it was the accounts receivable that were sold. Consequently, Koito and not the bank is considered the seller of the imported merchandise. The "interest" payments made by NAL were paid directly to Koito, the seller, and not the foreign bank. Koito is receiving the benefit from such payments. Additionally, the payments are not unrelated to the imported merchandise as a part of an overall agreement like the shortfall and special application fees in Chrysler. In this case, the payments made by NAL are based on an invoice by invoice basis which relate directly to individual shipments. Thus, these payments are part of the total payment to the seller, Koito, for the imported merchandise and are part of the price actually paid or payable.

Next, we must determine whether these payments nonetheless are excluded from transaction value based on the criteria set forth in T.D. 85-111 dated July 17, 1985, and the Statement of Clarification for T.D. 85-111 dated July 17, 1989 (54 F.R. 29973) (the "Clarification"). T.D. 85-111 states that interest payments, whether or not included in the price actually paid or payable for imported merchandise, shall not be regarded as part of the customs value provided that:

(a) The charges are distinguished from the price of the goods;

(b) The financing arrangement was made in writing;

(c) Where required, the buyer can demonstrate that

- Such goods are actually sold at the price declared as the price actually paid or payable, and
- The claimed rate of interest does not exceed the level for such transactions prevailing in the country where, and when the financing was provided.

T.D. 85-111 is to apply whether the financing is provided by the seller, a bank or another natural or legal person, and if appropriate, where the merchandise is valued under a method other than transaction value.

In the Clarification, Customs stated that for purposes of T.D. 85-111, "the term 'interest' encompasses only bona fide interest charges, not simply the notion of interest arising out of delayed payment." Customs further added that "bona fide interest charges are those payments that are carried on the importer's books as interest expenses in conformance with generally accepted accounting principles." We do not have enough information to determine whether the payments at issue are "bona fide interest charges." However, even assuming the charges are bona fide interest charges, they do not satisfy all the criterion set forth in T.D. 85-111.

One of the criteria which must be satisfied for interest charges to be excluded is a written financing arrangement. NAL has offered an invoice, a purchase order, and a General Terms and Conditions statement, which are to be taken together as a whole, as evidence of their written financing arrangement. The General Terms and Condition statement sets forth the terms of sale and states that "interest will accrue on items past due from terms stated above." None of these documents contains specific information regarding interest rates or a guide for determining the interest rate. These documents are similar to those in HRL 545277, which were the D/A invoice and the statement of D/A interest prepared by the seller and included with the purchase documentation. In HRL 545277, Customs found that there was no written financing arrangement because the documentation did not contain specific information regarding interest rates or a guide for determining the interest rate. The same is true in this case. Therefore, as in HRL 545277 , these documents presented together do not constitute a written financing arrangement as required by T.D. 85-111. As this requirement of T.D. 85-111 is not met, it is not necessary to determine whether the remaining requirements are met. The "interest" payments are to be included in the transaction value for the imported merchandise.

NAL states that the structure of their transaction with Koito is similar to the overall financing arrangement, i.e., a charge account arrangement, found in TAA #43 dated December 17, 1981. TAA #43, issued prior to T.D. 85-111, found that a charge account arrangement was part of an overall financing arrangement which was the required standard for excluding interest costs at that time. Since, the transactions subject to appraisement in this case occurred after T.D. 85-111 was issued, we do not find the TAA #43 instructive in this case.

HOLDING:

Based on the evidence presented, the payments at issue are considered payments to the seller and part of the price actually paid or payable. In addition, these payments are not provided for in a written financing agreement as set forth in T.D. 85-111 and the Clarification. Therefore, they are included in the transaction value for the imported merchandise.

The Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS and the public via the Diskette Subscription Service, Freedom of Information Act and other public access channels 60 days from the date of this decision.

Sincerely,

Acting Director
International Trade Compliance

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