Monarch Luggage Co., Inc. v. US, Court No. 85-11-01641.

• Decision Date: 28 June 1989
• Docket Number: Court No. 85-11-01641.
• Citation: 715 F. Supp. 1115
• Parties: MONARCH LUGGAGE CO., INC., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

715 F. Supp. 1115

MONARCH LUGGAGE CO., INC., Plaintiff, v. UNITED STATES, Defendant.

Court No. 85-11-01641.

United States Court of International Trade.

June 28, 1989.

Grunfeld, Desiderio, Lebowitz & Silverman, Steven P. Florsheim, New York City, for plaintiff.

Stuart E. Schiffer, Acting Asst. Atty. Gen., Washington, D.C., Joseph I. Liebman, Atty. in Charge, Commercial Litigation Branch, Civ. Div., U.S. Dept. of Justice, Kenneth N. Wolf, for defendant.

OPINION

MUSGRAVE, Judge.

BACKGROUND

This action contests the United States Customs Service's (Customs) appraisement of certain entries of various luggage articles imported by plaintiff from Taiwan during the years 1981, 1984, and 1985. The Court has jurisdiction under 28 U.S.C. § 1581(a).

The parties agree that the proper basis of appraisement is Transaction Value, as defined in Section 402(b) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1401a(b) (1982). Plaintiff claims that the invoice F.O.B. values include "buying commissions" paid by plaintiff to the Taiwanese companies Krasa and Prosperous, which plaintiff claims are bona fide buying agents. Plaintiff contends that the entries should be reliquidated with duties assessed upon the invoice F.O.B. values, excluding the alleged buying commissions and requests that defendant be directed to refund to plaintiff the difference between the duties assessed upon reliquidation and the duties upon the invoice F.O.B. values, plus interest. Defendant contends that the subject luggage was properly appraised based upon the invoice F.O.B. values, identified on the invoices and/or debit notes attached to the entry papers.

DISCUSSION

It is well settled that bona fide buying commissions are not a proper element of dutiable value. Rosenthal-Netter, Inc. v. U.S., 12 CIT ___, ___, 679 F.Supp. 21, 23 (1988), aff'd, 861 F.2d 261 (1988); Jay-Arr Slimwear, Inc. v. U.S., 12 CIT ___, ___, 681 F.Supp. 875, 878 (1988). However, plaintiff bears the burden of proof in establishing the existence of a bona fide agency relationship and that the charges paid were bona fide buying commissions. New Trends, Inc. v. U.S., 10 CIT 637, 640, 645 F.Supp. 957, 960 (1986); See also, Pier 1 Imports, Inc. v. U.S., 13 CIT ___, Slip Op. 89-25 (February 23, 1989).

Plaintiff presented two witnesses at trial: Donald Liebowitz, Executive Vice President of plaintiff Monarch Luggage, and Richard Young, Managing Director of Prosperous and Krasa. Mr. Liebowitz testified that Monarch Luggage's primary business involves the importation of luggage products from the Far East. According to Mr. Liebowitz, the luggage importation business requires a "presence" in the exporting country in order to be successful. Mr. Liebowitz travels to Taiwan between three and six times a year for several weeks at a time. During these trips Mr. Liebowitz visits many of the various luggage manufacturers in Taiwan in order to meet them, to inspect their facilities, to place orders, to negotiate terms, and the like. This witness further testified that notwithstanding these frequent visits, a continuing presence in the form of a local agent who is familiar with the industry is also necessary.

Mr. Liebowitz testified that he met Mr. Young, Managing Director of both Prosperous and Krasa¹, during his first visit to Taiwan in 1977. At the end of this trip Mr. Young was told that his companies could be Monarch's agents in Taiwan. Plaintiff had a verbal agreement with Mr. Young until 1981, at which time the agreement was put in writing.

The agreement sets out the duties of Prosperous, referred to as "the Agent". The agreement sets out inter alia the following terms with respect to the duties of the agent. The agent is to attempt to obtain the best available source for merchandise. The agent may, only at the direction of the Principal, place orders with manufacturers. The agent shall arrange and coordinate payment to the manufacturer pursuant to the explicit instructions of the Principal. Upon instruction by the Principal, the agent shall arrange for inland freight storage, insurance, and the like. The agent shall visit the manufacturers in order to inspect the quality of the merchandise, and shall assist the Principal in the return of merchandise deemed to be defective. In the case of returned merchandise, the manufacturer, and not the agent, is required to absorb the loss. The agreement further states that the agent shall never act as a seller in any transaction involving the principal.

All of the above services are characteristic of those rendered by a bona fide agent. See, U.S. v. Nelson Bead Co., 42 CCPA 1975, C.A.D. 590 (1955); Carolina Mfg. Co. v. U.S., 62 Cust.Ct. 850, R.D. 11640 (1969). But, of course, an agreement such as described above is not in itself dispositive of the issue. Rosenthal-Netter, 12 CIT at ___, 679 F.Supp. at 26. Whether the relationship is one of agent-principal "is to be determined by the substance of the transaction —not by the labels the parties attach to it." Pier 1 Imports, Inc. v. U.S., 13 CIT ___, Slip Op. 89-25 at 13 (quoting Dorf Int'l, Inc. v. U.S., 61 Cust.Ct. 604, 610, A.R.D. 245, 291 F.Supp. 690, 694 (1968)).

At trial both witnesses testified as to the nature of their relationship and established to the satisfaction of the Court that the activities performed by Prosperous and Monarch were indicative of a agent-principal relationship generally. There is, however, one further factor which must be considered.

The merchandise at issue was entered into the United States during the years 1981, 1984 and 1985. Mr. Young testified, and the entry...