HQ 563482 - Sale for Exportation to the United States; Nissho Iwai; Multi-tiered Transactions. - United States International Trade Commision Rulings

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HQ 563482

June 29, 2006

CLA-02 RR:CTF:VS 563482 EAC

CATEGORY: VALUATION

Ms. Kathleen M. Murphy
Gardner Carton & Douglas
191 N. Wacker Drive, Suite 3700
Chicago, IL 60606-1698

RE: Sale for Exportation to the United States; Nissho Iwai; Multi-tiered Transactions.

Dear Ms. Murphy:

This is in response to your letter of March 27, 2006, submitted on behalf of your client, Best Buy Purchasing, LLC (“BBY”), requesting a ruling pertaining to the valuation of merchandise imported into the United States via a multi-tiered transaction with Best Buy China, Ltd. (“BBC”). Confidential treatment for certain information identified in the ruling request will be extended in accordance with your request.

FACTS:

Relationship of the Parties

Best Buy Co., Inc. (“Best Buy”), is a specialty retailer that sells consumer electronics, home-office products, entertainment software, appliances, and related services. Best Buy Enterprise Services, Inc. (“BBES”), a wholly-owned subsidiary of Best Buy, performs certain administrative and compliance functions for BBY pursuant to a service agreement. BBY, a wholly-owned subsidiary of BBES, serves as the importer of record for the merchandise imported into the United States. The multi-tiered transaction at issue in this case involves the importer (BBY), the middleman (BBC), and unrelated manufacturers.

You advise that BBC was formed as part of an internal organizational restructuring in order to facilitate trade in the Asia-Pacific region. In this regard, BBC enters into manufacturing agreements with the unrelated manufacturers, which set forth the agreed upon terms and conditions between the parties. These agreements include payment terms, shipping terms, product specifications, packaging and labeling requirements, procedures for product returns, as well as vendor performance and operation standards. A sample manufacturing agreement was provided. Transactions involving BBC mostly involve Best Buy private label merchandise, as opposed to third party brand name goods. Pursuant to the terms of sale between the manufacturer and BBC specified in the manufacturing agreement, risk of loss and title to the merchandise pass to BBC at the foreign port of export. For ocean shipments, the terms of sale are “FOB, [port of export]” and for air shipments, the terms of sale are “FCA, [carrier nominated by Best Buy at the named place designated by Best Buy].”

BBC and BBY have entered into a vendor agreement, effective November 26, 2005. The subject vendor agreement was also included with your submission. The agreement provides the relevant terms and conditions governing the sale of merchandise from BBC to BBY including how prices are determined, how orders for merchandise are placed, the applicable shipping terms, procedures for product returns and discontinued products, and indemnification against liabilities. According to the terms of sale between BBC and BBY, risk of loss and title to the merchandise pass to BBY according to the term: “DAF, on the high seas just prior to the crossing of the international boundary that constitutes the territorial waters of the United States.” With respect to air shipments, you further advise that BBY obtains title and assumes risk of loss from BBC according to the term: “DAF, place within international airspace just prior to the crossing of the international boundary, over which constitutes the territorial airspace of the United States.”

BBC outsources certain sourcing and logistics functions to its wholly-owned subsidiary, Best Buy (Asia Pacific) Limited (“BBL”). A description of the specific services performed by BBL on BBC’s behalf is set forth in a service agreement between the parties. Such services include soliciting and reviewing price quotations from manufacturers, negotiating terms of purchase, identifying and evaluating potential manufacturers in the Asia Pacific region, informing BBC of regulatory changes that affect sourcing activities or delivery of merchandise, inspecting sample merchandise for quality assurance purposes, and monitoring the timely delivery of orders. You state that these activities help BBC to be uniquely positioned to buy merchandise from manufacturers in the Asia-Pacific region and to sell such merchandise to BBY for U.S. distribution.

The Multi-tiered Transaction

You have provided mock documents that serve as the paper trail for the multi-tiered transaction presently under consideration. It appears as if the multi-tiered transaction between the parties is initiated when a demand manager, employed by BBES, populates a purchase order screen in Best Buy’s “Retek” inventory system on BBY’s behalf. This information is uploaded onto a web-based electronic data interchange system that produces a purchase order. We note that the resulting purchase order number is referenced in various documents throughout the paper trail.

BBC, through the services of BBL, checks the web-based electronic data interchange system daily for new purchase orders received from BBY. After BBL reviews a purchase order, a purchase order acknowledgement is transmitted to BBES’ finance department, which while working on BBY’s behalf, confirms receipt of the order and indicates the prices agreed upon between the parties. In most instances, the information is also sent to the manufacturer of the merchandise, who can view the purchase order if logged into the data interchange system. The manufacturer is notified when a new purchase order is uploaded onto the data interchange system by email notification. In order to log into the system, the foreign manufacturer enters an assigned vendor number and password. The vendor number notifies the Retek system that this is a BBC transaction and thus the purchase order header indicates that BBC is the buyer of the merchandise.

The manufacturer prepares a commercial invoice and packing list and provides both to BBC. These documents are forwarded to BBL for verification as to accuracy and completeness. The prices between the manufacturer and BBC are agreed to in writing in the manufacturing agreement.

A bill of lading for a representative ocean shipment of merchandise indicates that BBY is the consignee of the merchandise. You opine that this demonstrates that the merchandise on this particular shipment, stated to be representative of most transactions involving BBC, is shipped directly from the manufacturer in China to a U.S. Best Buy deconsolidation center (if an ocean shipment) or to a U.S. Best Buy warehouse (if an air shipment). This document references the purchase order that initiated the multi-tiered transaction presently under consideration.

Subsequently, BBC prepares through BBL its commercial invoice to BBY. The prices between BBC and BBY are determined in accordance with the current pricing schedule in effect between BBC and its unrelated manufacturers. To this amount is added a variable markup between BBC and BBY that is tied to the merchandise SKU numbers, as set forth in the vendor agreement.

Payment from BBC to the manufacturer is based on a payment invoice that the manufacturer transmits through the web-based electronic data interchange system and which BBES processes on BBC’s behalf. The BBES finance department matches the manufacturer’s payment invoice to electronic receipts of product into the Retek inventory system. Payment to the manufacturer is made via wire transfer, with payment terms that average sixty days. Payments from BBY to BBC are based on an invoice that the BBES finance department creates on BBC’s behalf. This invoice is created from monthly summary reports of merchandise received by U.S. distribution centers and warehouses and which include the SKU-specific markup percentages that are reflected in the vendor agreement. BBC is paid via wire transfer with end of month 75-day payment terms. The wire transfer amounts correspond with the totals on the monthly summary reports.

ISSUE:
Whether the imported merchandise may be appraised on the basis of the transaction between the middleman and manufacturer.

LAW AND ANALYSIS:

The preferred method of appraising merchandise imported into the United States is the transaction value method as set forth in section 402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (“TAA”), codified at 19 U.S.C. §1401a. Section 402(b)(l) of the TAA provides, in pertinent part, that the transaction value of imported merchandise is the "price actually paid or payable for the merchandise when sold for exportation to the United States" plus amounts for the enumerated statutory additions. In order for imported merchandise to be appraised under the transaction value method it must be the subject of a bona fide sale between a buyer and seller, and it must be a sale for exportation to the United States.

The courts have had the opportunity to address the issue of the use of the transaction value method in multi-tiered transactions (involving foreign middlemen and foreign manufactures). In Nissho Iwai American Corp. v. United States, 982 F.2d 505 (Fed. Cir. 1992), the Court of Appeals for the Federal Circuit addressed the method for determining the use of transaction value in a three-tiered distribution system involving a foreign middleman. The court indicated that a manufacturer's price for establishing transaction value is valid so long as the transaction between the foreign manufacturer and the foreign middleman falls within the statutory provision for valuation. In this regard, the court stated that in a three-tiered distribution system:

The manufacturer’s price constitutes a viable transaction value when the goods are clearly destined for export to the United States and when the manufacturer and the middleman deal with each other at arm’s length, in the absence of any non-market influences that affect the legitimacy of the sale price.

Id. at 509. See also, Synergy Sport International, Ltd. v. United States, 17 C.I.T. 18 (1993).

In response to the decision in Nissho Iwai American Corp. v. United States, U.S. Customs and Border Protection (“CBP”) issued its official position on the application of that decision in the form of a Treasury Decision (“T.D.”). In T.D. 96-87, Determining Transaction Value in Multi-Tiered Transactions, Vol. 30/31, Customs Bulletin No. 52/1, (January 2, 1997), CBP clarified some of the issues that arise in multi-tiered transactions in determining which sale is the sale for exportation to the United States for the purposes of determining transaction value. T.D. 96-87 states, in part, that:

[I]n fixing the appraisement of imported merchandise, Customs presumes that the price paid by the importer is the basis of transaction value and the burden is on the importer to rebut this presumption. In order to rebut this presumption, in accordance with the Nissho Iwai standard, the importer must prove that at the time the middleman purchased, or contracted to purchase, the goods were "clearly destined for export to the United States" and the manufacturer (or other seller) and middleman dealt with each other at "arm's length." In reaching a decision, Customs must ascertain whether the transaction in question falls within the statutory provision for valuation, i.e., that it is a sale, that it is a sale for exportation to the United States in accordance with the standard set forth above, and that the parties dealt with each other at "arm's length." As stated in Nissho Iwai, these questions are determined case-by-case on the evidence presented.

T.D. 96-87 also identifies the documentation and information required to support a determination that transaction value should be based on a sale involving a middleman and the manufacturer or other seller rather than on the sale to which the importer is a party. First, a complete paper trail of the imported merchandise showing the structure of the entire transaction must be provided. Second, if the parties to the requested transaction are related, the importer must provide CBP with information that demonstrates that transaction value may be based on the related party sale as provided in 19 U.S.C. §1401a(b)(2)(B) (i.e., that the circumstances of sale indicate that the relationship did not influence the price or that the transaction value closely approximates certain test values). Finally, sufficient information must be provided with regard to the statutory additions set forth in 19 U.S.C. §1401a(b)(1) (i.e., packing costs, selling commissions, assists, royalty or license fees, and proceeds of any subsequent sale), for the alleged sale between the manufacturer and the middleman.

With respect to the documentation required for the importer to rebut the presumption that the price paid by the importer is the basis of transaction value, T.D. 96-87 states that:

In order for an importer to rebut the presumption[that the price paid by the importer is the basis of transaction value], certain information and documentation must be provided. Specifically, the requestor must describe in detail the roles of all the various parties and furnish relevant documents pertaining to each transaction that was involved in the exportation of the merchandise to the United States. If there is more than one possible sale for exportation, information and documentation about each of them should be provided. Relevant documents include, purchase orders, invoices, proof of payment, contracts and any additional documents (e.g. correspondence) which demonstrate how the parties dealt with one another and which support the claim that the merchandise was clearly destined to the United States. If any of these documents do not exist, or exist but are not available, the ruling request should so provide. What we are looking for is a complete paper trail of the imported merchandise showing the structure of the entire transaction.

As applied, CBP presumes that transaction value is based on the price paid by the importer and in order to rebut this presumption, and to base transaction value on the price BBC pays to the manufacturer, there must be sufficient evidence that shows: (1) that the transaction between BBC and the manufacturer is a bona fide sale; (2) that the imported merchandise is clearly destined for exportation to the United States when BBC purchases or contracts to purchase the merchandise from the manufacturer; (3) that the sale between BBC and manufacturer is an arm’s length sale; and (4) the amounts to be added to the price actually paid or payable for the statutory additions.

It should be noted that CBP’s rulings are normally based on the evidence submitted when the ruling request is received. Although, CBP is not precluded from requesting additional information, this will not be done routinely. If insufficient evidence is provided, the claim will be denied as noted in Headquarters Ruling Letter (“HRL”) 548520 dated July 30, 2004.

Bona Fide Sale

The term "sale," as articulated in the case of J.L. Wood v. United States, 62 CCPA 25, 33, C.A.D. 1139, 505 F.2d 1400, 1406 (1974), is defined as the transfer of property from one party to another for consideration. In considering whether a bona fide sale has taken place between a potential buyer and seller of imported merchandise, however, no single factor is determinative. Rather, the relationship is to be ascertained by an overall view of the entire situation, with the result in each case governed by the facts and circumstances of the particular case itself. See, Dorf International, Inc. v. United States, 61 Cust. Ct. 604, A.R.D. 245, 291 F. Supp. 690 (1968).

Several factors may indicate whether a bona fide sale exists between a potential buyer and seller. In determining whether property or ownership has been transferred, CBP considers whether the potential buyer has assumed the risk of loss and acquired title to the imported merchandise. In addition, CBP may examine whether the potential buyer paid for the goods, and whether, in general, the roles of the parties and circumstances of the transaction indicate that the parties are functioning as buyer and seller.

As applied to this case, we conclude that the transaction between the middleman, BBC, and manufacturer is a bona fide sale. In making this determination, we note that BBC and the manufacturer are not related and will freely negotiate the price of the goods. Additionally, BBC assumes the risk of loss and title to the merchandise from the foreign port of export to a point just prior to crossing the international boundary of the United States. Moreover, the various commercial documents provided indicate that the parties are fulfilling their contractual obligations, exchanging goods for financial consideration and functioning as buyer and seller.

Clearly Destined For Export to the United States

The next issue that must be considered in this case is whether the evidence presented demonstrates that the merchandise is clearly destined for export the United States.

In this case, a complete paper trail pertaining to both the manufacturer-BBC and the BBC-BBY transactions was submitted as required by T.D. 96-87. We initially note that the purchase order from BBY to BBC provides that the merchandise is intended for ultimate delivery to the United States. The bill of lading seems to confirm that the merchandise will be directly shipped from the foreign port where loaded to the port of discharge in the United States. The representative purchase order number is referenced in documents subsequently generated in the paper trail such as invoices, confirmations, and packing lists. Moreover, the initial purchase order between BBY and BBC corresponds with the subsequent orders, packing list, and invoices with respect to article type and quantity ordered. Thus, it is our opinion that the evidence provided demonstrates that the subject merchandise is clearly destined for export to the United States when BBC purchases, or contracts to purchase, the goods.

Arm’s Length

Under Nissho, the sale between BBC and the manufacturer must have been conducted at arm’s length in order to serve as the basis for transaction value. CBP presumes that unrelated parties transact business with one another at arm’s length. You assert that BBC and the manufacturer are unrelated parties. Therefore, without evidence to the contrary, we presume that the transaction between BBC and the manufacturer satisfies the arm’s length requirement of Nissho.

Statutory Additions

The final element that must be established in order to rebut the presumption that the price actually paid or payable by the importer to the middleman is the transaction value involves the statutory additions to the price that are set forth in 19 U.S.C. §1401a(b)(1). Section 1401a(b)(1) provides that amounts equal to the following must be added to the price actually paid or payable:
the packing costs incurred by the buyer with respect to the imported merchandise;
any selling commissions incurred by the buyer with respect to the imported merchandise;
the value, apportioned as appropriate, of any assist;
any royalty or license fee related to the imported merchandise that the buyer is required to pay, directly or indirectly, as a condition of the sale of the imported merchandise for exportation to the United States; and
the proceeds of any subsequent resale, disposal, or use of the imported merchandise that accrue, directly or indirectly, to the seller.

CBP must be provided sufficient information to confirm, as between BBC and the manufacturer, that there are no statutory additions or, alternatively, must be advised of the nature and amount of the statutory additions that must be added to the price actually paid or payable. See, for example, HRL 548494 dated January 26, 2005. In this case, you advise that it is possible that certain support may be provided from time to time to the manufacturers to assist in the production of the imported merchandise. Based upon the information provided, we are unable to confirm whether such support must be added to the price actually paid or payable. Nonetheless, you acknowledge that such services could represent dutiable assists and state that BBY will report such dutiable assists to CBP as required in order for them to be added to the price actually paid or payable.

HOLDING:

The information presented in this case indicates that the sale between the unrelated manufacturer and middleman (BBC) constitutes a bona fide sale conducted at arm’s length and that the merchandise is clearly destined for export to the United States at the time the middleman (BBC) purchases, or contracts to purchase, the merchandise. Therefore, we find that the price paid between the manufacturer and middleman (BBC) may serve as the basis of appraisement under transaction value for the imported merchandise.

In making this determination, however, we note that our office was not provided evidence regarding potential dutiable assists. Please be advised that section 177.9(b)(1), U.S. Customs and Border Protection Regulations (19 CFR 177.9(b)(1)), provides that "[e]ach ruling letter is issued on the assumption that all of the information furnished in connection with the ruling request and incorporated in the ruling letter, either directly, by reference, or by implication, is accurate and complete in every material respect." The application of a ruling letter by a CBP field office to the transaction to which it is purported to relate is subject to the verification of the facts incorporated in the ruling letter, a comparison of the transaction described therein to the actual transaction, and the satisfaction of any conditions on which the ruling was based. Thus, this ruling is limited to the facts specifically considered, infra.

A copy of this ruling letter should be attached to the entry documents at the time this merchandise is entered. If the documents have been filed without a copy, this ruling should be brought to the attention of the CBP officer handling the transaction.

Sincerely,

Monika Brenner, Chief
Valuation and Special Programs Branch

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