Samsung Electronics Co., Ltd. v. United States

Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE
SAMSUNG ELECTRONICS CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant.
WHIRLPOOL CORPORATION,
Defendant-Intervenor.
Before: 	Nicholas Tsoucalas,
Senior Judge
Court No. 13-00099
PUBLIC VERSION
OPINION
[The Department of Commerce’s remand determination is sustained.]
Dated: 'HFHPEHU
Warren E. Connelly, J. David Park, and Nazak Nikakhtar, Akin Gump
Strauss 	Hauer 	& 	Feld 	LLP, 	of 	Washington, 	DC, 	for 	Plaintiff.
Phyllis 	L. 	Derrick, 	Akin 	Gump 	Strauss 	Hauer 	& 	Feld 	LLP, 	of
Washington, DC, consultant for Plaintiff.
Douglas 	G. 	Edelschick, 	Trial 	Attorney, 	Commercial 	Litigation
Branch, Civil Division, U.S. Department of Justice, of Washington,
DC, 	for 	defendant. 	With 	him 	on 	the 	brief 	were 	Joyce 	R. 	Branda,
Acting 	Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director,
and Franklin E. White, Jr., Assistant Director. 	Of counsel on the
brief was Whitney Rolig, Attorney, Office of the Chief Counsel for
Trade 	Enforcement 	& 	Compliance, 	U.S. 	Department 	of 	Commerce, 	of
Washington, DC.
Jack A. Levy, John D. Greenwald, Myles S. Getlan, Thomas M. Beline,
and 	Jonathan 	M. 	Zielinski, 	Cassidy 	Levy 	Kent 	(USA) 	LLP, 	of
Washington, DC, for Defendant-Intervenor.
Tsoucalas, 	Senior 	Judge: 	This 	action 	involves 	a
challenge 	contesting 	subsidy 	calculations 	that 	were 	made 	by
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defendant Department of Commerce (“Commerce”) in the final results
of 	a 	countervailing 	duty 	(“CVD”) 	investigation 	covering 	large
residential washers (“LRWs”) from the Republic of Korea. 	See Large
Residential Washers From the Republic of Korea: Final Affirmation
Countervailing 	Duty 	Determination, 	77 	Fed 	Reg. 	75,975 	(Dec. 	26,
2012)(“Final 	Determination”); 	See 	also 	Issues 	and 	Decision
Memorandum for the Final Determination in the CVD Investigation of
LRWs 	from 	the 	Republic 	of 	Korea 	(Dec. 	18, 	2012) 	(“IDM”). 	Before
the 	court 	are 	the 	Final 	Results 	of 	Redetermination 	Pursuant 	to
Court Order, ECF No. 50 (Apr. 11, 2014) (“Remand Results”), filed
by 	Commerce 	pursuant 	to 	Samsung 	Electronics 	Co., 	Ltd. 	v. 	United
States, 	38 	CIT 	__, 	973 	F.Supp.2d 	1321 	(2014)(“Samsung 	I”). 	The
relevant facts and procedural history are set forth in Samsung I.
Familiarity with the court’s decision in Samsung I is presumed.
Plaintiff 	Samsung 	Electronics 	Co., 	Ltd. 	(“Samsung” 	or
“Plaintiff”) 	contests 	the 	Remand 	Results. 	Defendant-intervenor
Whirlpool 	Corporation 	supports 	Commerce’s 	findings 	in 	its 	Remand
Results. 	For the reasons discussed below, the court sustains the
Remand Results.
JURISDICTION and STANDARD OF REVIEW
The 	Court 	has 	jurisdiction 	pursuant 	to 	28 	U.S.C.
§ 1581(c) (2006) and section 516A(a)(2)(B)(I) of the Tariff Act of
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1930 	(the 	“Act”), 1 	as 	amended, 	19 	U.S.C. 	§ 	1516a(a)(2)(B)(I)
(2006). 	The 	court 	will 	uphold 	Commerce’s 	remand 	redetermination
in 	a 	CVD 	investigation 	unless 	it 	is 	“unsupported 	by 	substantial
evidence on the record, or otherwise not in accordance with law.”
19 U.S.C. § 1516a(b)(1)(B)(I).
Additionally, 	“an 	agency's 	interpretation 	of 	its 	own
regulations 	is 	entitled 	to 	broad 	deference 	from 	the 	courts.”
Cathedral 	Candle 	Co. 	v. 	U.S. 	Int’l 	Trade 	Comm’n, 	400 	F.3d 	1352,
1363 (Fed. Cir. 2005).
Discussion
In the original proceeding, Commerce determined that the
Government of Korea (“GOK”) provided countervailable subsidies to
Samsung, warranting the application of a 1.85% ad valorem CVD rate.
See 	Final 	Determination, 	77 	Fed. 	Reg. 	at 	75,977. 	Of 	particular
relevance 	to 	this 	instant 	action, 	Commerce 	found 	that 	Samsung’s
tax 	credits 	under 	the 	Republic 	of 	Korea 	Restriction 	of 	Special
Taxation 	Act 	(RSTA) 	Article 	10(1)(3) were 	de 	facto 	specific
because 	Samsung 	received 	a 	disproportionately 	large 	share 	of 	the
total 	benefit 	the 	GOK 	conferred 	under 	this 	program. 	See 	IDM 	at
1 Further citations to the Tariff Act of 1930 are to the relevant
portions 	of 	Title 	19 	of 	the 	U.S. 	Code, 	2006 	edition, 	and 	all
applicable amendments thereto.
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11–13. 	The 	GOK 	provides 	RSTA 	Art. 	10(1)(3) 	tax 	credits 	to
companies 	making 	eligible 	investments 	in 	research 	and 	human
resources 	development 	(“R&D”). 	See 	Remand 	Results 	at 	3–4.
Specifically, Commerce determined that Samsung received [[ 	]]% of
the total benefit the GOK conferred under RSTA Art. 10(1)(3), while
the average beneficiary received [[ 	]]%. 	See Calculations for
Samsung (Dec. 18, 2012), Confidential Rec. 196, Att. 7 at 1.
Under 	the 	Act, 	“a 	countervailable 	subsidy 	is 	a
subsidy 	. 	. 	. 	which 	is 	specific 	as 	described 	in 	[19 	U.S.C.
§ 	1677(5A)].” 	19 	U.S.C. 	§ 	1677(5)(A). 	Where 	the 	subsidy 	in
question is a domestic subsidy, as is the case here, Commerce may
find that the subsidy is specific as a matter of law or as a matter
of fact. 	19 U.S.C. § 1677(5A)(D).
A 	domestic 	subsidy 	is 	specific 	in 	fact 	if 	“[a]n
enterprise or industry receives a disproportionately large amount
of the subsidy.” 	19 U.S.C. § 1677(5A)(D)(iii)(III). 	The Court of
Appeals 	for 	the 	Federal 	Circuit 	held 	that 	“determinations 	of
disproportionality . . . are not subject to rigid rules, but rather
must be determined on a case-by-case basis taking into account all
the facts and circumstances of a particular case.” 	AK Steel Corp.
v. 	United 	States, 	192 	F.3d 	1367, 	1385 	(Fed. 	Cir. 	1999).
Accordingly, 	the 	court 	seeks 	to 	determine 	whether 	Commerce’s
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disproportionality 	finding 	in 	its 	Remand 	Results 	was 	reasonable
given the facts of the instant case. 	Samsung I, 973 F.Supp.2d at
1328.
In Samsung I, the Court remanded the Final Determination
with 	instructions 	to 	revisit 	its 	determination 	regarding 	the
disproportionality 	of 	Samsung’s 	Art. 	10(1)(3) 	tax 	credits.
Samsung I, 973 F.Supp.2d at 1328. 	The Court held that “Commerce’s
determination 	was 	unreasonable 	because 	it 	did 	not 	adequately
address 	how 	Samsung’s 	Art. 	10(1)(3) 	tax 	credit 	was
disproportionately 	large 	based 	on 	the 	facts 	in 	the 	case.” 	Id.
The 	Court 	stated 	that 	“[o]n 	remand, 	Commerce 	is 	not 	barred 	from
comparing 	Samsung’s 	share 	of 	the 	total 	benefit 	to 	the 	share 	an
average 	beneficiary 	received, 	but 	it 	must 	explain, 	with 	specific
reference 	to 	the 	facts 	of 	this 	case, 	why 	such 	a 	comparison 	is
indicative of disproportionality.” 	Id.
In 	its 	Remand 	Results, 	Commerce 	continued 	to 	find 	that
Samsung received a disproportionately large amount of the benefits
under 	the 	RSTA 	Art. 	10(1)(3). 	See 	Remand 	Results 	at 	4–5. 	On
remand, 	Commerce: 	(1) 	clarified 	its 	findings 	with 	respect 	to
whether 	RSTA 	Art. 	10(1)(3) 	conferred 	benefits 	pursuant 	to 	a
“standard 	pricing 	mechanism”; 	(2) 	analyzed 	Samsung’s 	share 	of
benefits 	under 	Art. 	10(1)(3) 	relative 	to 	the 	amount 	received 	by
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the other 99 largest recipients of benefits under the program; and
(3) 	analyzed 	Samsung’s 	tax 	savings 	under 	RSTA 	Art. 	10(1)(3)
relative 	to 	the 	tax 	savings 	that 	the 	other 	99 	largest 	recipients
received in relation to their total tax liability.
I. 	Commerce Reasonably Concluded that RSTA Art. 10(1)(3) Does
Not 	Confer 	Benefits 	According 	to 	a 	Standard 	Pricing
Mechanism
Plaintiff argues that Commerce “continues to erroneously
rely 	on 	the 	very 	same 	method 	for 	determining 	disproportionality
that this Court initially found to be unreasonable ‘because it did
not adequately address how Samsung's Art. 10(1)(3) tax credit was
disproportionately large based on the facts in the case.’” 	Pl.’s
Br. 	at 	1 	(citing 	Samsung 	I, 	973 	F.Supp.2d. 	at 	1328). 	Plaintiff
insists that Commerce incorrectly distinguishes the tax credit in
the 	instant 	case 	from 	the 	“standard 	pricing 	mechanism” 	which
conferred 	a 	benefit 	based 	on 	“usage 	levels” 	found 	in 	the
electricity 	benefit 	programs 	considered 	in 	Bethlehem 	Steel 	v.
United States. 	Id. at 4 (citing Bethlehem Steel v. United States,
25 CIT 307, 322, 140 F. Supp. 2d 1354, 1369 (2001), amended by, 25
CIT 	627, 	155 	F.Supp.2d 	7071 	(2001)). 	Plaintiff 	also 	argues 	that
the 	fact 	that 	the 	amount 	a 	beneficiary 	may 	claim 	on 	their 	tax
returns 	differs 	from 	the 	amount 	of 	tax 	credits 	that 	beneficiary
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has earned “does not destroy the proportionality” of the subsidy.
Id. at 6.
Plaintiff’s 	arguments 	are 	unconvincing. 	In 	Samsung 	I,
the 	court 	noted 	that 	Commerce 	has 	previously 	applied 	the 	concept
of a “standard pricing mechanism” with regards to analyzing whether
a company received a disproportionate amount of benefits under to
a 	subsidy. 	See 	Final 	Affirmative 	CVD 	Determinations: 	Pure
Magnesium 	and 	Alloy 	Magnesium 	From 	Canada, 	57 	Fed. 	Reg. 	30,946
(Jul. 	13, 	1992); 	See 	also 	Samsung 	I, 	973 	F.Supp.2d 	at 	1326–27.
The court also noted that in Bethlehem Steel v. United States, the
Court 	found 	that 	it 	was 	reasonable 	for 	Commerce 	to 	consider 	an
enterprise 	or 	industry’s 	use 	of 	a 	subsidy 	program 	in 	determining
whether 	the 	benefit 	was 	proportionate. 	See 	Bethlehem 	Steel, 	25
CIT 	at 	322, 	140 	F. 	Supp. 	2d 	at 	1369. 	In 	that 	case, 	the 	Korean
steel industry received 51% of the discounts the GOK awarded under
an electricity rate reduction subsidy. 	Id. 	Nevertheless, Commerce
found that the benefit was proportionate because high electricity
usage 	was 	an 	inherent 	characteristic 	of 	the 	steel 	industry, 	all
recipients received an identical rate reduction based on a standard
mechanism, 	and 	the 	subsidy 	was 	not 	designed 	to 	benefit 	any 	one
industry over another. 	See id. at 321–23, 140 F. Supp. 2d at 1368–
70.
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Subsequently, 	on 	remand 	Commerce 	effectively
distinguished Art. 10(1)(3) from the standard pricing mechanism in
Bethlehem 	Steel. 	See 	id. 	at 	322, 	140 	F. 	Supp. 	2d 	at 	1369. 	In
Samsung 	I, 	the 	Court 	was 	concerned 	with 	the 	notion 	that 	“[i]n
virtually every program that confers benefits based on usage levels
one or more groups will receive a greater share of the benefits[.]”
Samsung 	I, 	973 	F.Supp.2d 	at 	1326 	(citing 	Bethlehem 	Steel, 	25 	CIT
at 	322, 	140 	F. 	Supp. 	2d 	at 	1369). 	This 	concern 	stemmed 	in 	part
from the fact that in the original proceeding, Commerce’s analysis
of 	the 	structure 	of 	Art. 	10(1)(3) 	was 	limited 	to 	the 	following:
the GOK calculates a company's Art. 10(1)(3) tax credit in one of
two 	ways, 	either 	40% 	of 	the 	difference 	between 	eligible
expenditures 	in 	the 	tax 	year 	and 	the 	average 	of 	eligible
expenditures 	in 	the 	prior 	four 	years, 	or 	a 	maximum 	of 	6% 	of
eligible expenditures in the current tax year. 	See LRWs From the
Republic 	of 	Korea: 	Preliminary 	Affirmative 	CVD 	Determination 	and
Alignment 	of 	Final 	Determination 	With 	Final 	Antidumping
Determination, 77 Fed.Reg. 33,181, 33,187 (Jun. 5, 2012). 	Commerce
addressed 	the 	Court’s 	concern 	in 	its 	Remand 	Results 	by 	providing
evidence supporting its finding that RSTA Art. 10(1)(3) tax credits
are 	not 	based 	strictly 	on 	the 	basis 	of 	a 	company’s 	qualifying
investments in a given year. 	Remand Results at 6–7. 	Specifically,
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Commerce 	found 	that 	companies 	were 	permitted 	to 	claim 	RSTA 	Art.
10(1)(3) tax credits by “using one of two formulas: as a percentage
of 	the 	difference 	between 	qualifying 	research 	and 	development
expenses 	in 	the 	current 	tax 	year 	and 	the 	average 	of 	qualifying
expenditures 	from 	the 	previous 	four 	years, 	or 	using 	a 	maximum
percentage 	of 	total 	qualifying 	research 	and 	development 	expenses
for the current tax year.” Id. at 6. 	Commerce also found the tax
credits 	a 	company 	was 	eligible 	to 	receive 	varied 	due 	to 	the 	fact
that “RSTA Article 10(1)(3) establishes different rates for small-
and medium-sized enterprises [(“SMEs”)] versus larger companies.”
Id. at 7. 	Additionally, Commerce determined that, “under the first
formula, SMEs may claim up to 50 percent, while larger corporations
may claim only 40 percent; under the second formula, SMEs may claim
up 	to 	25 	percent, 	while 	larger 	corporations 	are 	limited 	to 	a
maximum 	of 	six 	percent.” 	Id. 	at 	7-8. 	Based 	on 	these 	variations,
Commerce 	reasonably 	distinguished 	the 	subsidy 	program 	in 	the
instant 	case 	from 	the 	program 	present 	in 	Bethlehem 	Steel, 	which
conferred 	benefits 	based 	solely 	on 	a 	company’s 	qualifying
expenditures. 	Because 	under 	RSTA 	Art. 	10(1)(3) 	companies 	with
identical amounts of eligible investments could receive different
amounts of the tax credits, Commerce reasonably concluded based on
the facts in the instant case that RSTA Art. 10(1)(3) tax credits
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are 	unlike 	the 	benefits 	conferred 	in 	Bethlehem 	Steel. 	See
Bethlehem 	Steel, 	25 	CIT 	at 	321–23, 	140 	F. 	Supp. 	2d 	at 	1368–70;
See also Remand Results at 8.
Commerce 	also 	provided 	further 	data 	demonstrating 	that
it 	is 	inappropriate 	to 	classify 	RSTA 	Art. 	10(1)(3) 	as 	a 	standard
pricing 	mechanism 	through 	its 	analysis 	of 	the 	GOK’s 	“Minimum 	Tax
Scheme.” 	Remand 	Results 	at 	8. 	Commerce 	found 	that 	the 	GOK’s
Minimum Tax Scheme limits the amount of tax credits a beneficiary
may 	claim 	under 	the 	RSTA, 	effectively 	creating 	a 	“tax 	ceiling.”
Id.; 	See 	also 	Def.’s 	App. 	Accompanying 	Resp. 	to 	Pl.’s 	Comments
Concerning 	Remand 	Results, 	GOK’s 	May 	30, 	2014 	Resp. 	at 	2–4.
Specifically, 	Commerce 	determined 	that 	Samsung 	only 	claimed
[[ 	]]% 	of 	its 	RSTA 	Art. 	10(1)(3) 	tax 	credits 	earned 	in 	2010,
while deferring the remainder. 	Remand Results at 8. 	As discussed
above, because a company’s RSTA Art. 10(1)(3) tax credits are based
on 	a 	number 	of 	variables, 	such 	as 	the 	formula 	used, 	prior 	years
eligible 	investments, 	and 	the 	application 	of 	Korea’s 	Minimum 	Tax
Scheme, 	Commerce 	reasonably 	concluded 	that 	RSTA 	Art 	10(1)(3) 	did
not 	qualify 	as 	a 	“standard 	pricing 	mechanism” 	which 	is 	directly
proportionate 	to 	a 	company’s 	qualifying 	expenditures. 	See
Bethlehem 	Steel, 	25 	CIT 	at 	321–23, 	140 	F. 	Supp. 	2d 	at 	1368–70;
See also Remand Results at 7–9.
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II. 	Commerce 	Reasonably 	Determined 	that 	Samsung 	Received 	a
Disproportionate Amount of the RSTA Art. 10(1)(3) Benefits
Plaintiff 	argues 	that 	Commerce 	relied 	on 	exactly 	the
same methodology in its Remand Results, except here Commerce chose
to alter the following: (1) “instead of using the total tax credits
awarded 	to 	all 	11,764 	companies, 	[Commerce] 	used 	the 	tax 	credit
awarded to just 100 companies;” (2)”instead of dividing the total
credit 	by 	the 	total 	number 	of 	recipients 	to 	derive 	the 	average
percentage 	of 	the 	total 	benefit 	received 	by 	each 	company,
[Commerce] 	divided 	the 	tax 	credits 	received 	by 	99 	to 	get 	the
average 	percentage 	credit 	received 	by 	each 	of 	the 	99 	companies.”
Pl.’s 	Br. 	at 	12–13. 	Since 	the 	methodology 	used 	by 	Commerce 	was
“identical 	in 	concept” 	to 	the 	original 	methodology, 	Plaintiff
therefore insists that Commerce’s findings are insufficient “as a
matter 	of 	fact 	or 	law 	to 	demonstrate 	disproportionality 	for 	the
reasons that this court has previously found.” 	Id. at 14.
Moreover, Plaintiff argues that Commerce improperly used
taxable 	income 	as 	an 	appropriate 	variable 	of 	comparison 	between
Samsung 	and 	the 	99 	companies 	because 	“the 	investments 	that 	are
eligible 	for 	RSTA 	Art. 	10(1)(3) 	tax 	credit 	are 	not 	a 	function 	of
taxable 	income.” 	See 	id. 	at 	14-15. 	Plaintiff 	notes 	that 	“the
ratio 	of 	each 	company’s 	R&D 	expenses 	that 	were 	eligible 	for 	tax
credit to its total expenses,” is a better variable of comparison
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because 	such 	ratio 	would 	“identify 	those 	companies 	that 	were
comparable 	in 	terms 	of 	their 	investment 	strategies.” 	Id. 	at 	15.
Additionally, Plaintiff contends that Commerce improperly equated
taxable 	income 	with 	size 	of 	company. 	Id.at 	14–15. 	Plaintiff
argues 	that 	Commerce 	should 	have 	compared 	companies 	similar 	to
Samsung on the basis of “gross sales revenue or, alternatively, by
asset value or number of employees,” as opposed to using “taxable
corporate 	income 	[which] 	is 	a 	direct 	function 	of 	gross 	revenue,
permissible adjustments to revenue, and deductible expenses.” Id.
at 	16. 	Finally, 	Plaintiff 	insists 	that 	taxable 	income 	as 	a
variable is “unrelated” to disproportionately. Id. at 17.
The court is not persuaded by Plaintiff’s arguments. 	As
discussed above, in Samsung I, the court held that Commerce failed
to “adequately address how Samsung's Art. 10(1)(3) tax credit was
disproportionately large based on the facts in the case.” 	Samsung
I, 	973 	F.Supp.2d 	at 	1328. 	The 	Court 	noted 	that 	“[o]n 	remand,
Commerce is not barred from comparing Samsung’s share of the total
benefit to the share an average beneficiary received, but it must
explain, 	with 	specific 	reference 	to 	the 	facts 	of 	this 	case, 	why
such a comparison is indicative of disproportionality.” 	Id.
In 	its 	Remand 	Results, 	Commerce 	continued 	to 	find 	that
Samsung 	received 	[[ 	]]% 	of 	the 	total 	benefit 	the 	GOK 	conferred
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under 	RSTA 	Art. 	10(1)(3), 	while 	the 	average 	beneficiary 	received
[[ 	]]%. 	Remand 	Results 	at 	2. 	Additionally, 	Commerce 	first
obtained data from the GOK allowing it to compare Samsung’s total
benefit 	under 	the 	subsidy 	with 	the 	100 	largest 	companies 	who
received 	the 	benefit 	by 	taxable 	income. 	Id. 	at 	9–11. 	In 	doing
so, Commerce determined that “Samsung accounted for approximately
[[ 	]]% 	of 	RSTA 	Art. 	10 	tax 	credits 	granted 	to 	the 	top 	100
recipients, and by its credit was equal to [[ 	]]% of the credits
received by the other 99 largest recipients.” 	Id. at 10-11.
Secondly, Commerce conducted an analysis of the data it
received from the GOK in order to allow it to account for company
size 	and 	total 	tax 	liability. 	This 	analysis 	allowed 	Commerce 	to
compare 	Samsung’s 	reduction 	in 	taxable 	income 	with 	the 	remaining
99 companies. 	Commerce found that the amount of RSTA Art. 10(1)(3)
tax 	credits 	Samsung 	received 	reduced 	its 	tax 	liability 	by
[[ 	]]%. 	Id. at 	14. 	Conversely, 	the 	tax 	credits 	reduced 	the
other 	99 	companies’ 	tax 	liability 	by 	[[ 	]]%. 	Id. 	at 	14.
Ultimately, 	Commerce 	found 	that 	Samsung 	received 	over 	[[ 	]]
times 	greater 	amount 	of 	tax 	benefits 	than 	the 	other 	companies
analyzed. 	Id. at 14.
The 	court 	finds 	that 	Commerce’s 	Remand 	Results
reasonably 	addressed 	its 	concerns 	in 	Samsung 	I. 	At 	best, 	the
Case 1:13-cv-00099-NT Document 71 Filed 12/24/14 Page 13 of 14

Court No. 13-00099 	Page 14
Plaintiff’s arguments amount to another reasonable interpretation
of the data before the court. 	See Matsushita Elec. Indus. Co. v.
United 	States, 	750 	F.2d 	927, 	933 	(Fed. 	Cir. 	1984)(“[T]he
possibility 	of 	drawing 	two 	inconsistent 	conclusions 	from 	the
evidence does not prevent an administrative agency's finding from
being supported by substantial evidence.”). 	Accordingly, based on
the facts of the instant case, Commerce reasonably concluded that
Samsung 	received 	a 	disproportionately 	large 	benefit 	of 	the 	RSTA
Art. 10(1)(3) tax benefit.
Conclusion
For 	the 	foregoing 	reasons, 	Commerce’s 	remand
redetermination 	is 	sustained 	in 	its 	entirety. 	Judgment 	will 	be
entered accordingly.
/s/ Nicholas Tsoucalas
Nicholas Tsoucalas
Senior Judge
Dated: 'HFHPEHU
New York, New York
Case 1:13-cv-00099-NT Document 71 Filed 12/24/14 Page 14 of 14