HQ 222781: Request for refund of duties paid on personal propertyentered into Customs territory for personal use; reconsiderationof denied protest; 19 CFR 174.12; 19 CFR 174.23; San FranciscoNewspaper Printing Co. v. U.S.

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 222781

                        September 3, 1991


BAG-5-02-CO:R:C:E 222781  TLS

CATEGORY: Entry/Liquidation

Mr. Jerome Rushka
3938 Wm. Dehaes #2099
Irving, Texas  75038


RE: Request for refund of duties paid on personal property
entered into Customs territory for personal use; reconsideration
of denied protest; 19 CFR 174.12; 19 CFR 174.23; San Francisco
Newspaper Printing Co. v. U.S.


Dear Mr. Rushka:

     The above-referenced letter has been received by this office
for consideration.  We have considered the points raised by your
letter.  Our decision follows.

FACTS:

     You entered a 1984 model Toyota van into U.S. Customs
territory from Canada.  It was your intention at the time to
become a permanent resident of the United States, though you had
not resided here before.  A job offer in Texas is the reason for
your move to this country.  The date of entry is August 14, 1990. 
Upon entry through the Dallas Customs port you paid a duty of $75
on the vehicle.  You state that the van is for personal use while
residing in this country.  

     On two separate occasions you wrote to Customs officials
seeking a refund of the duty paid, contending that the van is
entitled to duty-free status under 19 CFR 148.45 (1990).  You
claim that you were a nonresident at the time of entry which
qualifies you for an exemption from duty under chapter 98 of the
Harmonized Tariff Schedule of the United States Annotated
(HTSUSA).  The Dallas Customs office denied your initial request,
upon which you then sought redress from the Houston Customs
regional office.  Houston Customs responded on September 25,
1990, with a ruling that denied your request for refund and
affirmed the decision of the Dallas district.  The Houston office
reasoned that you became a resident under U.S. Customs laws when
you made Texas your permanent home and retained a permanent job
there.

     On October 17, 1990, you wrote this office seeking further
consideration of your request for a refund.

ISSUE:

     Whether the Customs Service may exercise jurisdiction over a
protest that has been denied.

LAW AND ANALYSIS:

     Customs Regulations section 174.12 governs situations where
an individual wishes to seek further consideration (a protest) of
a Customs decision.  A person may also request further review of
a protest decision in accordance with the regulations.  Under 19
CFR 174 the following is provided:

     174.12  Filing of protests.

     (a) By whom filed. Protests may be filed by:
          (2) Any person paying any charge or
          exaction;...

....

     (e) Time of filing. Protests shall be filed, in
     accordance with section 514, Tariff Act of 1930, as
     amended (19 U.S.C. 1514), within 90 days after...:
          (2) The date of the decision...;

     174.23 Further review of protests.

        A protesting party may seek further review of a
     protest in lieu of review by the district director by
     filing, on the form prescribed in 174.25, an
     application for such review within the time allowed and
     in the manner prescribed by 174.12 for the filing of a
     protest....

     To the extent that your case has been considered by both the
Dallas district office and the Houston regional office, we find
that this protest has been denied as of September 25, 1990.  Once
a protest has been denied, the Customs Service ceases to have
jurisdiction over the matter.  In fact, at least one court case
has ruled as such.  In San Francisco Newspaper Printing Co. v.
United States, 9 CIT 517 (1985), the court held "[o]nce Customs
mailed the denial of [a protest, there are] but two courses [to]
pursue: to abandon the protest, or to bring an action in this
Court."  Thus, at this juncture, your option is to file a claim
with the U.S. Court of International Trade if you wish to pursue
the matter any further.  We sympathize with the dilemma of having
to deal with a variety of procedural hurdles in attempting to
enter your vehicle into U.S. Customs territory, but we must
follow our own rules to maintain integrity and fairness in the
system.

     As for the substantive issue at bar, without providing a
repetitive recitation of the reasons for denial of your claim, we
do agree with the decision of the Houston office.  Your
relocation to the United States establishes your residency in
this country under Customs regulations.  Furthermore, we have
interpreted "non-residency" under this provision to mean an
intent to remain in this country only temporarily and not enter
your vehicle into the commerce of the United States.

     Among the acts you have done which demonstrate your intent
to enter the vehicle into the commerce of this country are your
attempts to comply with Environmental Protection Agency and
Department of Transportation requirements for vehicles imported
into the country on a permanent basis, the registration of your
vehicle in the state of Texas, and your application for a license
to operate the vehicle in the state of Texas for a period longer
than 90 days.  Notwithstanding your own admission of the intent
to reside here permanently, these factors weighed significantly
in the decisions reached by Dallas and Houston.  Thus, you do not
qualify for duty-free treatment under 19 CFR 148.45 on the entry
of your vehicle.  Again, we regret that you had to deal with the
many procedural guidelines and rules that accompany this process,
but we cannot make an exception in this case.

HOLDING:

     Customs cannot exercise jurisdiction over a protest after it
has been denied.  The decision of Houston Customs regional office
remains intact.

                               Sincerely,




                               John Durant, Director