Henry Mast Greenhouses, Inc. v. U.S.
| Decision Date | 04 December 1995 |
| Docket Number | Court No. 94-04-00221.,Slip Op. 95-198. |
| Citation | 966 F.Supp. 1226 |
| Parties | HENRY MAST GREENHOUSES, INC., Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
Flickinger & Associates, P.C., Grand Rapids, MI (Mary A. Owens, of counsel), for Plaintiff.
Frank W. Hunger, Assistant Attorney General, Washington, DC; Joseph I. Liebman, Attorney in Charge, International Trade Field Office; Barbara Silver Williams, New York City, Civil Division Dept. of Justice, Commercial Litigation Branch, for Defendant.
Plaintiff challenges Customs' refusal to reliquidate certain merchandise entered under an actual use provision of the Tariff Schedules of the United States. This case is before the court pursuant to 28 U.S.C. § 1581(a) on the summary judgment motions of the Plaintiff, Henry Mast Greenhouses, Inc., and the Defendant. The fundamental issue presented by the cross-motions is whether Plaintiff's unsupported allegation that "it had no involvement in the importation of the greenhouse" raises a genuine issue of material fact as to Plaintiff's duty liability.
Based upon the statements of the parties submitted pursuant to Rule 56(i) of this Court, and the record on the motions for summary judgment, the following facts are not in dispute. The merchandise was entered on November 10, 1988 and was claimed duty free under Section 870.40 of the Tariff Schedules of the United States ("TSUS") — an actual use provision which requires the importer to file proof of use within three years from the date of entry. TSUS Gen. R. Interpretation 10(e)(ii);1 19 CFR § 10.138.2 The official documents covering entry of the merchandise, see 28 U.S.C. § 2635(a) and USCIT R. 70, demonstrate that Plaintiff was named by its representative or agent as the importer of record on the Entry Summary form (Customs Form 7501). Plaintiff was similarly named as the ultimate consignee and importer of record on the Entry/Immediate Delivery form (Customs Form 3461). Plaintiff was also the principal on the bond, and Plaintiff's importer number is given as the importer number on the bond (Customs Form 301).
In addition, Plaintiff's customs broker submitted a letter to Customs in which Plaintiff was identified as the importer of record, as well as the end-user. The invoice for the merchandise provides that the merchandise is invoiced from the Dutch manufacturer directly to the Plaintiff, and the invoice shows delivery to Byron Center Michigan, where Plaintiff was located. The Plaintiff is named on the packing lists, and the bill of lading identifies the Plaintiff as the consignee.
On August 12, 1991 Customs sent a courtesy notification letter informing the Plaintiff that the three year period for filing the certificate of use was about to expire. Plaintiff did not respond. On or around November 13, 1992 the merchandise was liquidated and Customs imposed a $13,589.20 duty on Plaintiff. On January 25, 1993 Plaintiff filed a Protest asserting that the merchandise should have been classified duty free. On October 22, 1993 Customs denied the protest because Plaintiff had failed to file a proof of use certificate as required by 19 CFR § 10.138. On January 6, 1994 Plaintiff sent a letter to Customs asserting it was not the importer and therefore was not required to file the proof of use. Plaintiff attached to the letter a blanket certificate of end-use. Customs treated the letter as a request for relief pursuant to 19 U.S.C. § 1520(c). On March 22, 1994 Customs denied the requested section 1520(c) relief. Plaintiff did not protest this decision. On April 4, 1994 Plaintiff paid the duty and accrued interest in an amount of $15,344.24. Plaintiff commenced this action on April 13, 1994, within 180 days of the denial of its protest. See 28 U.S.C. § 2636(a).
Plaintiff moved for summary judgment and produced an affidavit of its president stating that the Plaintiff "had no involvement in the importation of the Greenhouse." Defendant, in turn, cross-moved for summary judgment and directed the Court's attention to the official documents for the entry which named the Plaintiff as the consignee, the importer of record, and the principal on the bond. Plaintiff failed to respond to the government's motion, offering no explanation for its ubiquity on the import documentation.
The court has jurisdiction under 28 U.S.C. § 1581(a) over denials by Customs of protests filed under 19 U.S.C. § 1515. The subject matter of section 1515 protests are prescribed in 19 U.S.C. § 1514(a),3 which lists seven categories of Customs' decisions that are subject to protest. In the instant case, Plaintiff filed a protest (falling within category 2 or 5 of section 1514(a)) on January 26, 1993 which was denied on October 22, 1993. Accordingly, Defendant does not challenge jurisdiction for Plaintiff's claims relating to categories 2 or 5 of section 1514(a).4
For the merchandise at issue here to be imported duty free, 19 CFR § 10.138 requires the filing of a proof of use within 3 years from the date of entry. In the absence of such a filing, duty is imposed on the importer. Plaintiff claims Customs was not entitled to impose a duty because Plaintiff was not the importer and had no obligation to file the proof of use. Plaintiff claims that it purchased the merchandise from an American subsidiary of a Dutch corporation, and that the subsidiary was the importer required to file the certificate of end-use or absorb the liability for duties imposed upon liquidation.5 Defendant claims that it is entitled to summary judgment because the transaction documents establish that Plaintiff was the importer of the merchandise in issue, and that Plaintiff did not timely file the required certificate of use. Defendant concludes that Customs properly liquidated the merchandise and imposed duties.
Rule 56 of this Court permits summary judgment when "there is no genuine issue as to any material fact...." USCIT R. 56(d)(emphasis added); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1390-91 (Fed.Cir.1987). Similarly, Rule 56 of this Court specifically requires that the Court determine "what material facts are actually and in good faith controverted." USCIT Rule 56(e).
On materiality, "the substantive law identifies which facts are material." Id. The identity of the importer is a material fact for determining duty liability. The applicable regulation defines an importer as "the person primarily liable for the payment of any duties...." 19 CFR § 101.1(l). On the question of genuineness, the standard for determining whether there is a genuine issue Id. at 248-52, 106 S.Ct. at 2510-12. "[T]he determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case." Id. at 256, 106 S.Ct. at 2514; see Sweats Fashions, Inc. v. Pannill Knitting Co., Inc., 833 F.2d 1560, 1562-63 (Fed.Cir.1987); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986) ().
The applicable substantive evidentiary standard places the burden on Plaintiff to overcome the statutory presumption of correctness that applies to Customs' decision to assess duties upon liquidation of Plaintiff's merchandise. See 28 U.S.C. § 2639(a)(1). To overcome the presumption of correctness, Plaintiff must produce substantial evidence in support of its claim that Customs imposed duty liability on the wrong party.6 Substantial evidence means Border Brokerage Company, Inc. v. United States, 58 Cust. Ct. 185, 188, C.D. 2929, 1967 WL 9454 (1967).
Plaintiff's argument that it was not the importer does not raise a genuine factual issue. Plaintiff, through the affidavit of its president, stated that it "believed" the American subsidiary was the importer of the goods. Plaintiff, however, has failed to identify any contractual provision between it and the subsidiary concerning duty liability; nor has Plaintiff joined the subsidiary as a party to the action. As detailed above, the official documents name Plaintiff as the importer of record and the consignee. Plaintiff is named as the principal on the bond, Plaintiff's importer number appears on the bond, and the merchandise was invoiced directly from the Dutch manufacturer to Plaintiff's place of business. More telling, the American subsidiary does not appear anywhere on the official documents. As ubiquitous as the Plaintiff is on the entry documents, the American subsidiary is conspicuously absent. Consequently, the American subsidiary cannot, under the facts of this case, be the importer for purposes of duty liability.7
The law governing this case leads to only one reasonable conclusion: The plaintiff was the importer for purposes of duty liability. Section 101.1(l) of Title 19 of the Code of Federal Regulations defines an importer as "the person primarily liable for the payment of any duties on the merchandise ..." and further specifies that the importer...
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