HQ 224954: Internal Advice; 19 U.S.C. 1520(c)(1); mistake of fact; HQ223206; Godchaux-Henderson Sugar Co., Inc. v. U.S.; T.D. 54848.

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 224954

                        January 12, 1994

LIQ-9-01-CO:R:C:E 224954 AJS

CATEGORY: Liquidation

District Director
U.S. Customs Service
9 North Grand Avenue
Nogales AZ 85621

RE: Internal Advice; 19 U.S.C. 1520(c)(1); mistake of fact; HQ
223206; Godchaux-Henderson Sugar Co., Inc. v. U.S.; T.D. 54848.

Dear Sir:

     This is in reply to your internal advice request of
September 10, 1993, concerning 19 U.S.C. 1520(c)(1) and William F
Joffroy, Inc. (i.e., the broker).

FACTS:

     The broker entered copper anodes for the importer at the 
Nogales District on an Entry Summary, Customs Form (CF) 7501. 
The broker paid $20,451.65 in duty and $400 in merchandise
processing fee.  The CF 7501 was liquidated on March 12, 1993. 
The broker claims that the importer had no intention of entering
and paying duty on the anodes at Nogales, but rather intended to
enter the anodes on a CF 7512, Immediate Transportation Entry,
for transportation under bond to a Class 7 bonded warehouse.  It
is claimed that the anodes then were to be smelted into a
different product and entered at a lower duty rate or exported
with no duty due.  No evidence, other than the broker's
assertion, is offered to establish these facts.  

     The broker claims that the entry was a mistake of fact
because they did not recognize the intent of the importer.  Your
request states that it is not clear if the importer failed to
disclose their plans to the broker, or if the broker's employees
mistakenly ignored these plans.  Your request additionally states
that there were no errors in the entry release, and the filing or
liquidation of the entry summary.

                               -2-

ISSUE:

     Whether the broker's claimed failure to enter the
merchandise as intended by the importer is a mistake of fact
correctable pursuant to 19 U.S.C. 1520(c)(1).   
 
LAW AND ANALYSIS:

     Initially, we note that the broker's request for
reliquidation of the subject entry pursuant to 19 U.S.C.
1520(c)(1) was timely filed.  The entry was liquidated
on March 12, 1993, and the request for reliquidation is dated 
March 19, 1993.

     19 U.S.C. 1520(c)(1) provides that Customs may reliquidate
an entry to correct "a clerical error, mistake of fact, or other
inadvertence not amounting to an error in the construction of a
law, adverse to the importer and manifest from the record or
established by documentary evidence, in any entry, liquidation,
or other customs transaction, when the error, mistake, or
inadvertence is brought to the attention of the appropriate
customs officer within one year after the date of liquidation or
exaction."

     In HQ 223206 (September 24, 1991), Customs addressed a case
similar to this request.  In that case, the importer filed a
consumption entry summary which was liquidated.  However, the
importer claimed that they intended to make entry as a
theoretical transfer to a warehouse.  The importer offered a
memorandum sent to the broker and a statement of a recorded
telephone conversation as evidence that a mistake of fact
occurred in the entry.  Customs ruled that the record did not
establish that a mistake of fact was made by Customs or the
importer, but merely that the importer alleges that it intended
to enter the merchandise one way and instead mistakenly entered
it another way.  Therefore, Customs did not find that a mistake
of fact occurred.  

     We note that HQ 223206 also stated that the issue of
changing a consumption entry to a theoretical transfer was not
protestable under 19 U.S.C. 1514 because neither the regulations
nor statute made provision for theoretical transfer of goods from
commerce to a bonded warehouse.  In this case, the broker is
making a similar request that Customs change a consumption entry
to an immediate transportation entry under bond to a bonded
warehouse.  This issue is also not protestable under section 1514
because neither the regulations nor statute allows for the
transfer of goods from commerce to a bonded warehouse under bond
by an immediate transportation entry.
     
                               -3-

     In this instance, the broker claims that they filed a
consumption entry when their client intended for them to file an
immediate transportation entry.  The broker has provided no
specific documentary evidence to support their claim that this
error was a mistake of fact.  In HQ 223206, the importer at least
provided some evidence to support their claim.  As stated
previously, Customs rejected this evidence as insufficient. 
Based on the decision in HQ 223206, we do not think it proper to
conclude otherwise when a party provides no evidence to support a
claim of mistake of fact.  This conclusion is supported by the
statutory language of 
1520(c)(1) itself, which requires a mistake of fact to be
"manifest from the record or established by documentary
evidence". 

     In Godchaux-Henderson Sugar Co., Inc. v. United States, 85
Cust. Ct. 68, C.D. 4874 (1980), the Customs Court discussed the
applicability of section 1520(c)(1).  In that case, the plaintiff
imported sugar under an immediate delivery permit but did not
file a consumption entry until a later time.  At the time of
importation, the sugar was eligible for duty-free treatment under
the Generalized System of Preferences.  However, after
importation and before entry, the duty-free status of the sugar
was terminated.  The plaintiff sought relief pursuant to section
1520(c)(1) for their failure to file the entry before the duty-
free status was terminated.

     The Customs Court held in Godchaux that plaintiff's failure
to file a duty-free entry by the deadline prescribed by law was
not within the scope of section 1520(c)(1).  The court stated
that by the express terms of section 1520(c)(1), plaintiff was
required to establish a "clerical error, mistake of fact, or
other inadvertence . . . in an entry, liquidation, or other
customs transaction . . ." ( emphasis in original).  Godchaux at
74.  The court further stated that plaintiff's mistake or
inadvertence was not in an entry, but rather in failing to make
an entry prior to a certain date.  Godchaux at 74.  The court
added that had plaintiff, through mistake of fact or
inadvertence, filed a dutiable entry prior to the termination
date for duty-free status and the entry was liquidated
accordingly, the entry could be reliquidated duty free pursuant
to section 1520(c)(1).  Godchaux at 74.

     In this case, the broker's mistake or inadvertence was not
in an entry, but rather in failing to make a certain type of
entry.  The broker made no mistake in the entry which they filed. 
As in Godchaux, had the broker filed an incorrect entry through
mistake of fact or inadvertence, the entry 
could be reliquidated pursuant to section 1520(c)(1).  Therefore,
we find the rationale of Godchaux instructive for 
                               -4-

determining that the broker's failure to file the type of entry
intended by their client is also not within the scope of section
1520(c)(1).  

     The broker cites to T.D. 54848, 94 Treas. Dec. 244 (1959),
in support of its claim.  This decision was an amendment to the
Customs Regulations and states that:

     Mistake of fact occurs when a person believes the facts     
to be other than they really are and takes some action      based
on that erroneous belief.  The reason for the 
     belief may be that a fact exists but is unknown to the
     person or he may be convinced that something is a fact 
     when in reality it is not.  For example, an importer's      
agent may be convinced that the importer wishes him to      make
a consumption entry for goods and he does so.  The     true fact
is that the importer desired an in bond entry     to be made in
the particular case.  If the true facts      had been known to
the agent, an in bond entry would have  been filed.

The example in this decision appears to be on point with your
request.  As stated previously, however, no evidence other than
the broker's assertion has been submitted to establish a mistake
of fact.  Furthermore, the more recent court decision in Godchaux
supports a contrary conclusion for the reasons discussed
beforehand.  More deference is required to be accorded Godchaux
as a court decision than to T.D. 58848 as an amendment to the
Customs Regulations.  Therefore, we do not find the example of a
mistake of fact cited in T.D. 58848 instructive for the
resolution of this case.

HOLDING:

     The broker's claimed failure to enter the merchandise as
intended by the importer is not a mistake of fact correctable
pursuant to 19 U.S.C. 1520(c)(1).

     The Office of Regulations and Rulings will take steps to
make this decision available to Customs personnel via the Customs
Rulings Module in ACS and the public via the Diskette
Subscription Service, Lexis, Freedom of Information Act and other
public access channels 60 days from the date of this decision.


                                 Sincerely,


                                 John Durant, Director
                                 Commercial Rulings Division