United States v. Alfred Dunhill of London, Inc.

Oliveh, Presiding Judge: This is an appeal from the decision and judgment of the single judge, reported as Reap. Dec. 5794, which sustained importer’s appeal for reappraisement and found the entered values of the merchandise at bar to be the proper dutiable values. The merchandise before us consists of smoking pipes manufactured by Alfred Dunhill, Ltd., of London, England, and exported to Alfred Dunhill of London, Inc., of New York City. It was stipulated [408] between counsel for the respective parties that the proper basis for finding dutiable value herein was cost of production as defined in section 402’ (f) of the Tariff Act of 1930, it being conceded that there was no foreign value, export value, or United States value. ■ The importer by its evidence established that when these pipes were sold to unregistered dealers in the home market, they were subject to a purchase tax outlined and described in a tax law of the United Kingdom entitled “Finance (No. 2) Act, 1940, 3 & 4 Geo. 6. Ch. 48.” This tax law provided for the imposition of a tax on sales of certain listed items of merchandise, which included pipes, when sold to nonregistered dealers. It further appears that when the pipes were sold to registered dealers or were sold for export, no tax was ipiposed on such sales. When the tax was imposed, as in the case of sales to unregistered dealers, it was set forth on the invoice •as a separate item and was collected by the manufacturer, placed in a separate account, and transmitted to the Government quarterly. The merchandise herein was entered at £0 16s. 2d. each for the ■quality “Standard Bruyere pipes” and at £0 15s. 6d. each for the quality described as “Shell Briar pipes.” They were appraised at £0 23s. 4d. and £0 22s. 4d. each, respectively, net, packed, including taxes. It is conceded that the only difference between the entered and the appraised values is represented by the sales tax hereinbefore mentioned which amounted to approximately 33$ per centum. It is the Government’s contention here, as it was upon the trial before the single judge, that the sales tax is a proper part of the dutiable value under the formula for ascertaining cost of production as set forth in section 402 (f) of the Tariff Act of 1930. Section 402 (f) of the Tariff Act of 1930 reads aS follows: (f) Cost of Phodtjction. — For the purpose of this title the cost of production of imported merchandise shall be the sum of— (1) The cost of materials of, and of fabrication, manipulation, or other process employed in manufacturing or producing such or similar merchandise, at a time preceding the date of exportation of the particular merchandise under consideration which would ordinarily permit the manufacture or production of the particular merchandise under consideration in the usual course of business; (2) The usual general expenses (not less than 10 per centum of such cost) in the case of such of similar merchandise; (3) The cost of all containers and coverings of whatever nature, and all other costs, charges, and expenses incident to placing the particular merchandise under consideration in condition, packed ready for shipment to the United States; and (4) An addition for profit (not less than 8 per centum of the sum of the amounts found under paragraphs (1) and (2) of this subdivision) equal to the profit which ordinarily is added, in the case of merchandise of the same general character as the particular merchandise under consideration, by manufacturers or producers in the country of manufacture or production who are engaged in the production or manufacture of merchandise of the .same class or kind. [409] Appellant does not claim that this tax is any part of section 402 (f) (1), which covers cost of materials and the cost of fabrication, manipulation, or other process employed in the manufacture of the article, nor is it claimed to be any part of section 402 (f) (3), which covers cost of containers, nor as any part of section 402 (f) (4), which provides for the profit to be charged. The Government confines its contention to the provision of section 402 (f) (2) claiming this tax dutiable as part of “the usual general expenses.” This contention that a purchase tax is a proper item of expense under the formula as set forth in section 402 (f) for" ascertaining cost' of production is something new in customs litigation. It has not heretofore been passed upon by our courts. The Government's theory, and it is stated to be just that, is that cost of production is a “constructive foreign value,” that such a sales ta,x as is here under consideration would be properly a part of foreign value, and therefore it should properly be part of cost of production. The importer has particularly directed its proof toward establishing that this purchase tax is not part of the “usual general expenses” incurred in producing the pipes in question. (United States v. Maier, 21 C. C. P. A. 41, T. D. 46378.) In Lionel Trading Co. v. United States, 24 C. C. P. A. 432, T. D. 48900, the court referred to cost of production as a “substitute for foreign value.” The Treasury Department in T. D. 48860 refers to it as a “constructive foreign-market value.” By whichever term it is more aptly described, the fact remains that value based on cost of production is something different from foreign value as that value is defined in section 402 (c). In the language of the layman, foreign value may be said to be the usual wholesale price at which anyone, can buy the same or substantially the same article in the country of origin with the other elements set forth in section 402 (c) present. The foreign value and the value arrived at by the cost of production method of calculation do not necessarily produce the same monetary result. It might well be that the usual wholesale market price in the foreign market would vary considerably from the value found to be the proper dutiable value under the formula for finding cost of production as set forth in section 402 (f). It is quite obvious that cost of production as defined by section 402 (f) is not confined to the naked cost of raw materials, labor, and manipulation because specific provision is made in the formula for profit (section 402 (f) (4)). There is nothing, however, in the formula for ascertaining cost of production which directly or inferentially authorizes the inclusion of any items of expense incurred by the purchaser after the article has been manufactured and-is packed ready for shipment. The tax here in question was not a charge arising out of the production of the merchandise. If the merchandise was never sold, this tax item would not even appear oh the books of the manu [410] facturer and yet tbe cost of production would bave been determined. If sold for export or to registered dealers, there would not even haye been an entry made of this tax. Even when sold to unregistered dealers in which instances the tax did attach, the tax was billed separately, collected as a separate item, kept separate and apart from the funds representing the proceeds of the sale, and remitted quarterly to the Government. The tax was no part of the cost of producing the article, no profit was figured on it, nor was it figured as part of the sales price by the manufacturer. It was a separate financial transaction collected by the manufacturers from unregistered dealers for the British Government. It was no part of any gross or net income. This tax was not placed upon the materials going into the manufacture of the merchandise. (Weaker & Co. v. United States, 47 Treas. Dec. 825, T. D. 40989 (G. A. 9017).) It was paid by the purchaser through the manufacturer to the Government. The tax simply had a temporary resting place with the manufacturer on its way to the coffers of the British Government. Appellant relies heavily upon the holding of our appellate court m Hugo Reisinger (Inc.) et al. v. United States, 20 C. C. P. A. 67, T. D. 45683, which held, under the facts in that case, that the German sales tax there in dispute was properly part of the. foreign value. Appellant here contends that the sales tax in the case at bar is properly part of cost of production on the theory that it would have been considered-part of foreign value if the facts herein made foreign value the proper-basis for dutiable value. Whether or not such a tax under the facts in the case at bar would be properly part of foreign value is not con ceded and is not before us. The Treasury Department in T. D. 48860 (71 Treas. Dec. 431) set forth its view that cost of production is a constructive foreign-market value and that the general expenses provided for therein are all those usually incurred by the manufacturer or producer of the particular merchandise under consideration “in connection with the creation, storage, sale, and distribution of .merchandise * * *.” The tax here before us was not an expense “incurred by the manufacturer or producer.” It was incurred by the purchaser. It was not a part of the manufacturer’s expense “in connection with the creation, storage, sale, and distribution” of these pipes.- There can be only one statutory cost of production value. If the contention of the Government herein were to be sustained, we would have one cost of production value, if these pipes were sold to a registered dealer or for export (in which case no purchase tax was due), and a different cost of production value if sold to an unregistered dealer. The cost of producing the article under the formula set forth in section 402 (f) (2) is the same regardless of whether it was sold to registered or unregistered dealers and for domestic consumption or [411] for exportation. We agree with the findings of the single judge, from whose decision and judgment this appeal is taken, that “the evidence produced by the plaintiff establishes every requirement of the statute for the proof of cost of production”; that this purchase tax is not a proper part of such cost of production, and that the entered values herein are the proper dutiable values of the merchandise at bar. We find the following: 1. That the merchandise at bar consists of smoking pipes manufactured in England by Alfred Dunhill, Ltd., and imported by Alfred Dunhill of London, Inc., located in New York City. 2. That there was no foreign, export, or United States value for this merchandise and that the proper basis for determining value was cost of'production as that value is outlined in section 402 (f) of the Tariff Act of 1930. 3. That sales of such pipes when sold in the United Kingdom to unregistered dealers were subject to a purchase tax and when sold to registered dealers in the United Kingdom or for export therefrom no purchase tax was imposed. 4. That said purchase tax when imposed applied only to finished pipes. It did not attach to the materials from which the finished articles were made. The tax was billed as a separate item, was deposited in a separate account, and was remitted to the British Government quarterly. We therefore conclude as a matter of law that the judgment of the court below should be affirmed. Judgment will be rendered accordingly.