What Every Member of the 

Trade Community Should Know About: 

BONA FIDE SALES 

&

SALES FOR EXPORTATION 

TO THE UNITED STATES

AN INFORMED COMPLIANCE PUBLICATION 

AUGUST 2005 
ii 

NOTICE:

This publication is intended to provide guidance and information to the trade community. 

It reflects the position on or interpretation of the applicable laws or regulations by U.S. 

Customs and Border Protection (CBP) as of the date of publication, which is shown on 

the front cover. It does not in any way replace or supersede those laws or regulations. 

Only the latest official version of the laws or regulations is authoritative. 

Publication History 

First Issued: November 1996 

Revised: January 2000 

Revised: July 2005 

PRINTING NOTE: 

This publication was designed for electronic distribution via the CBP website 

(http://www.cbp.gov) and is being distributed in a variety of formats. It was originally set 

up in Microsoft Word97®. Pagination and margins in downloaded versions may vary 

depending upon which word processor or printer you use. If you wish to maintain the 

original settings, you may wish to download the .pdf version, which can then be printed 

using the freely available Adobe Acrobat Reader®. 
iii

PREFACE 

On December 8, 1993, Title VI of the North American Free Trade Agreement Implementation 

Act (Pub. L. 103-182, 107 Stat. 2057), also known as the Customs Modernization or “Mod” Act, 

became effective. The provisions in the Mod Act amended many sections of the Tariff Act of 

1930 and related laws. 

Two new concepts that emerge from the Mod Act are “informed compliance” and “shared 

responsibility,” which are premised on the idea that in order to maximize voluntary compliance 

with the laws and regulations of U.S. Customs and Border Protection (CBP), the trade 

community needs to be clearly and completely informed of its legal obligations. Accordingly, the 

Mod Act imposed an obligation on the CBP to provide the public with improved information 

concerning the trade community's rights and responsibilities under customs regulations and 

related laws. In addition, both the trade community and the CBP share responsibility for 

carrying out these requirements. For example, under Section 484 of the Tariff Act, as amended 

(19 U.S.C. § 1484), the importer of record is responsible for using reasonable care to enter, 

classify and determine the value of imported merchandise and to provide any other information 

necessary to enable the CBP to assess duties properly, collect accurate statistics, and 

determine whether other applicable legal requirements, if any, have been met. The CBP is then 

responsible for fixing the final classification and value of the merchandise. The failure of an 

importer of record to exercise reasonable care could delay release of the merchandise and, in 

some cases, could result in the imposition of penalties. 

The Office of Regulations and Rulings has been given a major role in meeting the informed 

compliance responsibilities of the CBP. In order to provide information to the public, the CBP 

has issued a series of informed compliance publications on new or revised requirements, 

regulations or procedures, and a variety of classification and valuation issues. 

The Value Branch of the Office of Regulations and Rulings has prepared this publication on 

“Bona Fide Sales and Sales for Exportation to the United States.” We sincerely hope that this 

material, together with seminars and increased access to administrative rulings of the CBP, will 

help the trade community to improve voluntary compliance with customs regulations and laws 

and to understand the relevant administrative processes. 

The material in this publication is provided for general information purposes only. As many 

complicated factors can be involved in customs issues, an importer may wish to obtain an 

advance or pre-importation ruling under the CBP regulations (19 CFR Part 177) or to obtain 

advice from an expert who specializes in customs matters, for example, a licensed customs 

broker, attorney or consultant. 

Comments and suggestions are welcomed and should be addressed to the Assistant 

Commissioner at the Office of Regulations and Rulings, U.S. Customs and Border Protection, 

1300 Pennsylvania Avenue, NW, (Mint Annex), Washington, D.C. 20229. 

Michael T. Schmitz 

Assistant Commissioner 

 Office of Regulations and Rulings
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TABLE OF CONTENTS 

INTRODUCTION...........................................................................................................................................1 

QUESTIONS AND ANSWERS.....................................................................................................................1 

1. HOW IS IMPORTED MERCHANDISE APPRAISED? ........................................................................................1 

2. WHAT IS TRANSACTION VALUE? ..............................................................................................................1 

3. WHAT IS THE PRICE ACTUALLY PAID OR PAYABLE? ...................................................................................2 

4. WHAT IS THE RELEVANCE OF A “BONA FIDE SALE” AND A “SALE FOR EXPORTATION TO THE UNITED STATES”?

..................................................................................................................................................................2 

5. WHAT IS A “SALE”?.................................................................................................................................2 

6. WHAT IS “CONSIDERATION”?...................................................................................................................2 

7. WHAT FACTORS ARE DETERMINATIVE OF A BONA FIDE SALE? ....................................................................3 

8. WHAT FACTORS INDICATE WHETHER PROPERTY OR OWNERSHIP IN PROPERTY WAS TRANSFERRED? ..........3 

9. WHAT ROLE DOES POSSESSION PLAY IN DETERMINING WHETHER PROPERTY OR OWNERSHIP IN PROPERTY 

WAS TRANSFERRED?...................................................................................................................................3 

10. WHAT SIGNIFICANCE IS AFFORDED TO SHIPPING OR TRADE TERMS?........................................................4 

11. WHEN DOES A “SIMULTANEOUS PASSAGE OF TITLE” OCCUR AND WHAT DOES IT INDICATE ABOUT THE 

TRANSFER OF TITLE?...................................................................................................................................4 

12. WHAT OTHER FACTORS INDICATE THAT A BONA FIDE SALE HAS OCCURRED?............................................5 

13. WHAT EVIDENCE OR DOCUMENTATION, OTHER THAN SHIPPING OR TRADE TERMS, INDICATES WHETHER A 

BONA FIDE SALE HAS OCCURRED?................................................................................................................5 

14. WHEN DOES AN INQUIRY CONCERNING A SALE OF MERCHANDISE FOR EXPORTATION TO THE UNITED 

STATES BECOME RELEVANT?.......................................................................................................................6 

15. IF MORE THAN ONE BONA FIDE SALE HAS OCCURRED IN A MULTI-TIERED TRANSACTION, HOW IS THE 

TRANSACTION VALUE OF THE IMPORTED MERCHANDISE TO BE DETERMINED?..................................................6 

16. WHEN DOES A PARTY SERVE AS A MIDDLEMAN IN A MULTI-TIERED TRANSACTION?....................................7 

17. WHEN IS A FOREIGN MANUFACTURER'S PRICE ACCEPTABLE IN ACCORDANCE WITH THE DECISION IN NISSHO 

IWAI?..........................................................................................................................................................7 

18. WHAT IS THE RELEVANCE OF WHETHER A SALE IS CONDUCTED AT “ARM'S LENGTH” AND IS “CLEARLY 

DESTINED FOR EXPORTATION TO THE UNITED STATES”?................................................................................8 

19. WHEN IS A SALE CONSIDERED TO HAVE BEEN CONDUCTED AT “ARM'S LENGTH”?......................................8 

20. WHEN IS MERCHANDISE CLEARLY DESTINED FOR EXPORTATION TO THE UNITED STATES IN A MULTI-TIERED 

TRANSACTION? ...........................................................................................................................................8 

21. WHAT EVIDENCE IS NEEDED TO ESTABLISH THAT MERCHANDISE IS CLEARLY DESTINED FOR EXPORTATION 

TO THE UNITED STATES IN A MULTI-TIERED TRANSACTION? ...........................................................................9 

22. WHAT DOCUMENTATION AND INFORMATION IS NEEDED TO SUPPORT A DETERMINATION THAT TRANSACTION 

VALUE SHOULD BE PROPERLY BASED ON A SALE TO WHICH THE IMPORTER IS NOT THE BUYER?........................9 

23. HOW DOES AN IMPORTER EXERCISE REASONABLE CARE WHEN DECLARING A VALUE BASED ON A 

TRANSACTION TO WHICH IT IS NOT THE BUYER?...........................................................................................10 

DETERMINING TRANSACTION VALUE IN MULTI-TIERED TRANSACTIONS .....................................11 

ADDITIONAL INFORMATION....................................................................................................................14 

THE INTERNET ..........................................................................................................................................14 

CUSTOMS REGULATIONS...........................................................................................................................14 

CUSTOMS BULLETIN ..................................................................................................................................14 

IMPORTING INTO THE UNITED STATES ........................................................................................................15 

INFORMED COMPLIANCE PUBLICATIONS .....................................................................................................15 

VALUE PUBLICATIONS................................................................................................................................16 

“YOUR COMMENTS ARE IMPORTANT”..........................................................................................................17 
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Bona Fide Sales and Sales For Exportation to the United States 

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INTRODUCTION 

When goods are imported into the customs territory of the United States (the fifty states, 

the District of Columbia and Puerto Rico), they are subject to certain formalities 

involving the U.S. Bureau of Customs and Border Protection (“CBP”) of the U.S. 

Department of Homeland Security. In almost all cases, the goods are required to be 

“entered,” that is, declared to the CBP, and are subject to detention and examination by 

CBP officers to insure compliance with all laws and regulations enforced and 

administered by the CBP. As part of the entry process, goods must be classified in the 

Harmonized Tariff Schedule of the United States and their customs value must be 

determined. 

Pursuant to the Customs Modernization Act, it is the responsibility of the importer of 

record to use “reasonable care” to enter, classify and value the goods and provide any 

other information necessary to enable the CBP to assess the correct duties, collect 

accurate statistics, and determine whether all other applicable legal requirements have 

been satisfied. 

Under the authority of 19 U.S.C. § 1500(a), it is CBP’s responsibility to fix the final 

appraisement of merchandise in accordance with 19 U.S.C. § 1401a (as well as to fix 

the final classification and rate of duty applicable to the merchandise). This occurs after 

the importer of record, using reasonable care, has filed the declared value of the 

merchandise with the CBP. General customs valuation requirements are discussed in a 

CBP informed compliance publication entitled “What Every Member of the Trade 

Community Should Know About: Customs Value,” which is available from the CBP 

website: <www.cbp.gov>. The instant CBP informed compliance publication 

concentrates on ascertaining whether there has been a bona fide sale of merchandise 

for exportation to the United States for purposes of applying the transaction value 

method of appraisement. 

QUESTIONS AND ANSWERS 

1. How is imported merchandise appraised? 

All merchandise imported into the United States is subject to valuation or appraisement. 

The Trade Agreements Act of 1979, codified at 19 U.S.C. § 1401a, sets forth a 

hierarchy of methods for the appraisement of imported merchandise. 

2. What is transaction value? 

Under the Trade Agreements Act of 1979, the transaction value of imported 

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merchandise is the primary or preferred method for determining the value of imported 

merchandise. Generally, transaction value is the price actually paid or payable for 

merchandise when sold for exportation to the United States, plus certain statutorily 

enumerated additions. Unless there is a bona fide sale of the merchandise for 

exportation to the United States, the transaction value method cannot be used. An 

alternative method of appraisement must then be used. 

3. What is the price actually paid or payable? 

The price actually paid or payable for imported merchandise is the total payment, 

exclusive of any costs, charges, or expenses incurred for transportation, insurance, and 

related services incident to the international shipment of the merchandise from the 

country of exportation to the place of importation in the United States, made, or to be 

made, for imported merchandise by the buyer to, or for the benefit of, the seller. 

4. What is the relevance of a “bona fide sale” and a “sale for 

exportation to the United States”? 

By definition, transaction value requires that a sale of merchandise for exportation to the 

United States occur. This concept has two parts: (1) “bona fide” or “good faith” sales 

and (2) sales of merchandise for exportation to the United States. If it is shown that 

both (1) a bona fide sale and (2) a sale for exportation of the merchandise to the United 

States occurred, this component of transaction value is satisfied. 

5. What is a “sale”? 

A “sale” is the transfer of property from one party to another party for consideration. 

6. What is “consideration”? 

With regard to sales transactions, consideration means payment from one party to 

another for the imported merchandise. Evidence that would establish that consideration 

has passed from one party to another party includes evidence of payment by check, 

bank transfer, or payment by any other commercially acceptable manner. It also is 

necessary to demonstrate that payment was made for the imported merchandise in 

question. General transfers of money from one corporate entity to another that cannot 

be linked to a specific import transaction are not sufficient to show passage of 

consideration between the parties with respect to that import transaction. 

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7. What factors are determinative of a bona fide sale? 

Although several factors may indicate whether a bona fide sale has taken place 

between a potential buyer and seller of imported merchandise, no single factor is 

determinative. Rather, the relationship of the parties involved in the transaction is to be 

evaluated by an overall view of the entire situation, with the result in each case 

governed by the facts and circumstances of the individual case—and not by the labels 

that the parties may attach to the relationship. 

8. What factors indicate whether property or ownership in property 

was transferred? 

In determining whether property or ownership in property has been transferred from a 

potential seller to a potential buyer, CBP considers whether the potential buyer has 

assumed the risk of loss for the imported merchandise (i.e., the potential buyer was 

liable for the imported merchandise if lost or damaged during shipment) and acquired 

title to the imported merchandise (i.e., the potential buyer legally possesses or owns the 

imported merchandise). In addition, CBP may examine whether the potential buyer 

paid for the merchandise (i.e., consideration passed between the potential buyer and 

seller for the imported merchandise). 

Transactions involving goods that are shipped on consignment do not constitute bona 

fide sales because the goods are not the subject of a sale. Therefore, the transaction 

value method of appraisement cannot be used to appraise goods shipped to the United 

States on consignment. Other examples where imported goods are not considered to 

be the subject of a sale include gifts, samples and promotional items furnished free of 

charge; goods imported under a leasing contract; and goods that were loaned. The 

transaction value method cannot be used to appraise such goods. Therefore, an 

alternative method of appraisement must be used in such situations. 

9. What role does possession play in determining whether property 

or ownership in property was transferred? 

Although the possession of merchandise serves as a strong indication that the 

merchandise or ownership in the merchandise has been transferred from a potential 

seller to a potential buyer, it is not dispositive when considering whether such a transfer 

occurred. CBP still may find that the potential buyer assumed the risk of loss for and/or 

acquired title in the merchandise although the potential buyer never had actual or 

physical possession of the merchandise. 

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10. What significance is afforded to shipping or trade terms? 

In situations where no other pertinent evidence has been made available, CBP may 

reach its determination concerning whether a bona fide sale occurred based on the 

terms of sale (e.g., FOB or CIF), indicating when title and risk of loss were transferred. 

Otherwise, the terms of sale will be considered as part of the overall view of the entire 

situation in conjunction with all other relevant evidence. CBP primarily will consider as 

controlling the terms of sale provided on the invoices and written contracts or 

agreements regarding the sale of the merchandise. The meaning of all such shipping or 

trade terms will be construed consistent with the “Uniform Commercial Code” and 

“Incoterms 2000” (the official International Chamber of Commerce rules for the 

interpretation of trade terms), unless the transacting parties demonstrate through 

contracts, other legally enforceable agreements, or course of dealing, that they have 

afforded different meanings to the terms. 

11. When does a “simultaneous passage of title” occur and what 

does it indicate about the transfer of title? 

Particularly in situations where merchandise is shipped directly from the seller to the 

ultimate U.S. consignee, as opposed to being shipped from the seller to an intermediary 

(or middleman) and then to the ultimate U.S. consignee, the terms of sale may indicate 

that a “simultaneous passage of title” has occurred. In other words, based on the 

shipping terms, title and risk of loss pass from the seller to the intermediary, then 

immediately thereafter from the intermediary to the ultimate U.S. consignee. 

Consequently, the intermediary is considered to hold title only momentarily, if ever, and 

not to have borne the risk of loss according to the terms of sale. In such an instance 

and based solely on the shipping terms, a bona fide sale would not appear to have 

occurred between the seller and intermediary. In determining whether a bona fide sale 

occurred, however, CBP will consider other pertinent evidence or documentation if 

made available by the parties to the transactions. 

EXAMPLE:

Invoices and contracts between the parties provide for the FOB point of 

shipment of goods between a seller in country X and an intermediary in country 

Y and for FOB point of shipment between the intermediary and ultimate 

consignee in the United States. The submitted documents also indicate the 

goods were shipped directly from country X to the United States. 

Unless otherwise agreed to by the parties, title and risk of loss will be 

considered to pass from the seller to the intermediary when the 

merchandise was delivered to the carrier for shipment, then immediately 

thereafter from the intermediary to the ultimate consignee in the United 

States. Hence, based on the shipping terms, a bona fide sale would not 

appear to have occurred between the seller and intermediary, but rather 

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would appear to have occurred between the seller and ultimate consignee 

in the United States, with the intermediary potentially serving as an agent 

(most likely for the seller). If available, however, it would be appropriate to 

consider other pertinent evidence or documentation concerning the bona 

fides of the sale. 

12. What other factors indicate that a bona fide sale has occurred? 

In determining whether a bona fide sale has occurred, CBP also will consider whether, 

in general, the roles of the parties and circumstances of the transaction indicate that the 

parties were functioning as buyer and seller. Whereas it is characteristic of a buyerseller relationship for the parties to maintain an independence in their dealings, in a 

principal-agent relationship the former will control the actions of the latter. Specifically, 

CBP considers as evidence of a valid buyer-seller relationship whether the potential 

buyer: 

(a) provided (or could provide) instructions to the seller; 

(b) was free to sell the imported merchandise at any price it desired; 

(c) selected (or could select) its own customers without consulting the seller; 

and 

(d) could order the imported merchandise and have it delivered for its own 

inventory (as opposed to the seller delivering the merchandise directly to an 

ultimate U.S. consignee). 

The fact that a potential buyer cannot assume the above tasks is an indication that the 

party is serving as an agent (i.e., selling or buying agent) rather than as an independent 

buyer. For further information concerning principal-agent relationships, see the CBP 

informed compliance publication entitled “What Every Member of the Trade Community 

Should Know About: Buying and Selling Commissions,” which is available on the CBP 

web site: <www.cbp.gov>. 

13. What evidence or documentation, other than shipping or trade 

terms, indicates whether a bona fide sale has occurred? 

Contracts, distribution and other similar agreements, invoices, purchase orders, bills of 

lading, proof of payment, correspondence between the parties, and company reports or 

brochures all may serve as evidence that a party possesses title in and assumed the 

risk of loss for the imported merchandise and functions as a buyer or a seller, thus 

indicating that a bona fide sale has occurred with respect to the transaction under 

consideration. Such documentation should be consistent in its entirety and with the 

transaction in general (i.e., consistent prices, dates, parties and merchandise). Further, 

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the documentation and language included therein should reveal the substance of the 

transaction, including the obligations and roles of each of the parties. While formal 

sales contracts and other types of memorialized agreements (such as distribution or 

production agreements) generally are most revealing in this regard, other 

documentation (such as purchase orders, invoices, and proof of payment) evincing or 

establishing the structure of the transaction are crucial, especially in the absence of any 

written agreements. The terminology used in such agreements and documentation (i.e., 

“buyer,” “seller,” “principal,” or “agent”), although indicative, is not dispositive of the role 

played by each of the parties in the transactions under consideration. 

 14. When does an inquiry concerning a sale of merchandise for 

exportation to the United States become relevant? 

As indicated above, once it has been established that a bona fide sale of merchandise 

has occurred, the law requires that the sale of the merchandise be for exportation to the 

United States in order to appraise the merchandise under the transaction value method. 

15. If more than one bona fide sale has occurred in a multi-tiered 

transaction, how is the transaction value of the imported merchandise 

to be determined? 

There is a presumption that transaction value is based on the price actually paid or 

payable by the importer for the imported merchandise under consideration. The burden 

is on an importer to rebut this presumption. Therefore, in situations where more than 

one sale has occurred involving the imported merchandise and the importer wants to 

base transaction value on the price actually paid or payable in a sale to which it is not 

the buyer (e.g., the price paid for the merchandise in a sale between the foreign 

manufacturer and a foreign middleman), the importer must be able to establish by 

documentary evidence that such a sale is a sale for exportation to the United States. 

This documentary evidence must satisfy the requirements set forth in Nissho Iwai

American Corporation v. United States, 16 CIT 86, 786 F. Supp. 1002 (1992) rev'd 982 

F.2d 505 (Fed. Cir. 1992) and in General Notice (T.D. 96-87), Determining Transaction 

Value in Multi-Tiered Transactions, VoI. 30/31, Customs Bulletin No. 52/1 (January 2, 

1997). (See copy below.) Without such evidence, the importer has not overcome its 

burden to rebut the presumption discussed above, and CBP will base the transaction 

value for the imported merchandise on the price actually paid or payable for the 

merchandise by the U.S. importer (rather than on the manufacturer’s price to the 

middleman or the first-sale price). 

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16. When does a party serve as a middleman in a multi-tiered 

transaction? 

When at least two bona fide sales have occurred and the same party serves as a buyer 

(usually buying the imported merchandise from a foreign manufacturer) as well as a 

seller (usually selling the imported merchandise purchased from a foreign manufacturer 

to a U.S. importer or consignee) in a multi-tiered transaction, that party is considered to 

be a middleman. Depending on the manner in which such a multi-tiered transaction is 

structured, the importer of record, consignee, or any other type of buyer or seller, even if 

in the United States, may be a middleman. Where a multi-tiered transaction consists of 

more than two sales, generally there will be several middlemen.

17. When is a foreign manufacturer's price acceptable in accordance 

with the decision in Nissho Iwai? 

The Nissho Iwai case addressed the question of how to determine transaction value in a 

multi-tiered transaction. In that case, the New York City Metro Transit Authority (MTA) 

contracted to purchase subway cars from Nissho Iwai American Corporation (Nissho 

America). The price in the contract between the MTA and Nissho America represented 

the highest price from among the various prices involved in the sale and exportation of 

the subway cars to the United States. Kawasaki Industries of Japan (Kawasaki) and 

Nissho Iwai Corporation of Japan (Nissho Japan) participated in negotiations and in a 

bid proposal with the MTA. Nissho Japan purchased cars from Kawasaki, who was the 

primary Japanese manufacturer of the cars. Pursuant to the master contract, Kawasaki 

provided a warranty of performance to the MTA and Nissho America. As permitted by 

the contract, Nissho America assigned its contract rights to Nissho Japan. The issue 

before the courts was whether the transaction value of the subway cars was properly 

based on the Kawasaki-Nissho Japan sales price (i.e., the foreign manufacturer’s price) 

or on the MTA-Nissho America price reflected in the master contract (i.e., the 

middleman’s price). 

The U.S. Court of Appeals for the Federal Circuit, in reversing the decision of the U.S. 

Court of International Trade, held that the foreign manufacturer's price was a valid 

transaction value as long as the transaction between the foreign manufacturer and the 

middleman was a sale negotiated at “arm's length” that was free from any non-market 

influences that could affect the legitimacy of the sales price and involved goods clearly 

destined for exportation to the United States. This presupposes that a bona fide sale 

occurred and that the use of transaction value is not otherwise precluded by the U.S. 

valuation law (e.g., there are no restrictions on the disposition or use of the 

merchandise; there are no conditions or considerations for which a value cannot be 

determined; or there is insufficient information concerning an enumerated statutory 

addition to the price actually paid or payable). Based on the evidence presented in 

Nissho Iwai, the court found that the transaction value of the subway cars was properly 

based on the Kawasaki-Nissho Japan sales price (i.e., the price of the sale of the 

imported merchandise from the foreign manufacturer to the middleman or the first-sale 

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price). 

18. What is the relevance of whether a sale is conducted at “arm's 

length” and is “clearly destined for exportation to the United States”? 

If a sale was not conducted at “arm's length” or the merchandise that was the subject of 

the sale was not “clearly destined for exportation to the United States,” that sale cannot 

serve as the basis for transaction value. 

19. When is a sale considered to have been conducted at “arm's 

length”? 

In general, CBP will consider a sale between unrelated parties to have been conducted 

at “arm's length.” If the parties are related, however, a sale will be considered to have 

been conducted at “arm's length” only (1) if an examination of the circumstances of the 

sale of the imported merchandise indicates that the relationship between the buyer and 

seller did not influence the price actually paid or payable or (2) if the transaction value 

closely approximates a test value. For further information, see “Transfer Pricing; 

Related Party Transactions,” 58 FR 5445 (January 21, 1993). See also 19 U.S.C. § 

1401a(b)(2)(B) and 19 CFR § 152.103(j)(2). Also, for a list of persons who are 

considered related for purposes of related-party transactions, see 19 U.S.C. § 

1401a(g)(1) and 19 CFR § 152.102(g). 

20. When is merchandise clearly destined for exportation to the 

United States in a multi-tiered transaction? 

Although such a determination can only be made on a case-by-case basis, CBP will 

consider that merchandise is clearly destined for exportation to the United States in a 

multi-tiered transaction when the evidence establishes that at the time the middleman 

purchased or contracted to purchase the imported merchandise from the foreign 

manufacturer, the only possible destination for the merchandise was the United States 

(i.e., at the time of sale, the imported merchandise was irrevocably destined for the 

United States). 

It must be evident throughout the entire transaction that the merchandise is clearly 

destined for exportation to the United States. It is not sufficient, for example, to show 

after the merchandise was ordered and manufactured, at the time of shipment, near the 

end of the transaction, that it will be or was going to the United States. For instance, 

evidence that boxes for imported merchandise (e.g., table lamps) were addressed to the 

United States when delivered to a carrier is insufficient by itself to establish that the 

lamps were clearly destined for exportation to the United States. On the other hand, 

evidence that a U.S. retailer/importer had contracted for table lamps with a middleman 

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who, in turn, had contracted with a foreign manufacture for table lamps that were 

manufactured to conform to U.S. electrical requirements and the U.S. retailer’s design 

specifications (e.g., shape, materials, colors); bore the U.S. retailer’s labels, logos, 

unique stock numbers and bar codes; and were shipped directly from the country of 

manufacturer to the United States (thereby eliminating the possibility of diversion of the 

merchandise to another country) would show that the imported table lamps were clearly 

destined for exportation to the United States at the time the middleman purchased or 

contracted to purchase the lamps from the foreign manufacturer. 

21. What evidence is needed to establish that merchandise is clearly 

destined for exportation to the United States in a multi-tiered 

transaction? 

In order to establish that merchandise is clearly destined for exportation to the United 

States in a multi-tiered transaction, there must be a complete paper trail relating to the 

imported merchandise that shows the structure of the entire multi-tiered transaction. 

This would include invoices, sales contracts, purchase orders, proof of payment, 

shipping contracts or other documentation for each individual transaction involved in the 

multi-tiered transaction with consistent prices, dates, parties and merchandise. Other 

evidence would include manufacture, design, and other unique specifications or 

characteristics of the merchandise (often manifest in samples) made in conformity with 

the U.S. buyer's or importer’s standards; labels, logos, stock numbers, bar codes and 

other unique marks; and markings, visas, warranties or other types of certification or 

characteristics required for the entry into and sale or operation of the imported 

merchandise in the United States. All this evidence must show that the only possible 

destination for the imported merchandise was the United States at the time the 

middleman purchased or contracted to purchase the merchandise from the foreign 

manufacturer. 

22. What documentation and information is needed to support a 

determination that transaction value should be properly based on a 

sale to which the importer is not the buyer? 

T.D. 96-87 sets forth the documentation and information needed to support a 

determination that transaction value should be based on a sale not involving the U.S. 

importer in a multi-tiered transaction. It requires an importer to provide (1) a detailed 

description of the roles of each of the parties involved in the multi-tiered transaction and 

(2) a complete paper trail relating to the imported merchandise that shows the structure 

of the entire multi-tiered transaction. Specifically, T.D. 96-87 requires an importer to 

have documentary evidence that establishes (1) that the alleged sale of the imported 

merchandise was a bona fide sale (see question 13 above); (2) that the merchandise 

was clearly destined for exportation to the United States (see question 21 above); and 

(3) that the alleged sale between the middleman and foreign manufacturer was at arm’s 

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length (see question 19 above). Moreover, in order to determine whether a particular 

transaction may be the basis for transaction value, T.D. 96-87 also requires an importer 

to submit sufficient information with respect to the amounts, if any, of the statutory 

additions set forth in 19 U.S.C. § 1401a(b)(1) (i.e., packing costs, selling commissions, 

assists, royalty or license fees and proceeds of any subsequent sale). 

NOTE: When seeking an advance ruling, requesting internal advice or filing a protest, 

the above-mentioned documentation must be submitted with the advance ruling 

request, internal advice request or protest. 

23. How does an importer exercise reasonable care when declaring a 

value based on a transaction to which it is not the buyer? 

Under 19 U.S.C. § 1484, as amended, an importer shall, using reasonable care, 

complete an entry by filing with the CBP the declared value, classification and rate of 

duty applicable to the merchandise, and such other documentation or, pursuant to an 

electronic data interchange system, such other information as is necessary to enable 

the CBP to, among other things, properly assess duties on the merchandise. This 

would include sufficient information to enable the CBP to determine in a multi-tiered 

transaction which of the various sales is the sale of the merchandise for exportation to 

the United States upon which transaction value should be properly based. Accordingly, 

before an importer declares a transaction value based on a transaction to which it is not 

the buyer, the importer should be sure that such a transaction satisfies the criteria 

discussed above and be prepared to submit supporting evidence as described T.D. 96-

87, upon request by CBP. 

An importer who declares a value to CBP without the necessary supporting 

documentation would not be exercising reasonable care and may be subject to a 

penalty or other enforcement compliance action. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

DETERMINING TRANSACTION VALUE IN MULTI-TIERED TRANSACTIONS 

T.D. 96-87 

AGENCY: U.S. Customs Service, Department of the Treasury. 

ACTION: General notice. 

SUMMARY: The primary method of appraising imported merchandise is transaction value. 

Transaction value is the price actually paid or payable for imported merchandise when sold for 

exportation to the United States plus certain statutory additions. This notice clarifies some of the 

issues that arise in multi-tiered transactions in determining which is the sale for exportation to 

the United States for the purpose of determining transaction value. It also sets forth the 

documentation and information needed to support a ruling request that transaction value should 

be based on a sale involving a middleman and the manufacturer or other seller rather than on 

the sale in which the importer is a party. 

DATES: All future ruling requests that in a multi-tiered arrangement transaction value is properly 

based on a sale not involving the importer must be supported by the evidence discussed in this 

notice. 

FOR FURTHER INFORMATION CONTACT: o o o 

SUPPLEMENTARY INFORMATION: 

The primary method of appraising imported merchandise is transaction value. Section 

402(b) of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 

U.S.C. § 1401a), provides that the transaction value of imported merchandise is the price 

actually paid or payable for the merchandise when sold for exportation to the United States,

plus specified additions. Thus, in order for imported merchandise to be appraised under 

transaction value it must be the subject of a bona fide sale between the buyer and seller and it 

must be a sale for exportation to the United States. 

In Nissho Iwai American Corp. v. United States, 982 F.2d 505 (Fed. Cir. 1992), the Court of 

Appeals for the Federal Circuit reviewed the standard for determining transaction value in a 

three-tiered distribution system involving a middleman. The Court indicated that a 

manufacturer's price for establishing transaction value is valid so long as the transaction 

between the manufacturer and the middleman falls within the statutory provision for valuation. In 

this regard, the Court stated that in a three-tiered distribution system: 

The manufacturer's price constitutes a viable transaction value when the goods are 

clearly destined for export to the United States and when the manufacturer and the 

middleman deal with each other at arm's length, in the absence of any non-market 

influence that affect the legitimacy of the sale price * * * [T]hat determination can be 

made on a case-by-case basis. 

Id. at 509. See also, Synergy Sport International, Ltd. v. United States, 17 C.I.T. ___, Slip OP. 

93-5 (Ct. Int'l. Trade January 12, 1993). 

After Nissho Iwai, Customs has received numerous ruling requests that transaction value is 

properly based on a sale which does not involve the importer, but rather a middleman and the 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

manufacturer or other seller. In our rulings, we have stated that in fixing the appraisement of 

imported merchandise, Customs presumes that the price paid by the importer is the basis of 

transaction value and the burden is on the importer to rebut this presumption. In order to rebut 

this presumption, in accordance with the Nissho Iwai standard, the importer must prove that at 

the time the middleman purchased, or contracted to purchase, the goods were "clearly destined 

for export to the United States" and the manufacturer (or other seller) and middleman dealt with 

each other at "arm's length." In reaching a decision, Customs must ascertain whether the 

transaction in question falls within the statutory provision for valuation, i.e., that it is a sale, that it 

is a sale for exportation to the United States in accordance with the standard set forth above, 

and that the parties dealt with each at "arm's length."1

 As stated in Nissho Iwai, these questions 

are determined case-by-case based on the evidence presented. 

In order for an importer to rebut the presumption discussed above, certain information and 

documentation must be provided. Specifically, the requestor must describe in detail the roles of 

all the various parties and furnish relevant documents pertaining to each transaction that was 

involved in the exportation of the merchandise to the United States. If there is more than one 

possible sale for exportation, information and documentation about each of them should be 

provided.2

 Relevant documents include, purchase orders, invoices, proof of payment, contracts 

and any additional documents (e.g. correspondence) which demonstrate how the parties dealt 

with one another and which support the claim that the merchandise was clearly destined to the 

United States. If any of these documents do not exist, or exist but are not available, the ruling 

request should so provide. What we are looking for is a complete paper trail of the imported 

merchandise showing the structure of the entire transaction.3

 If the request covers many 

importations, it is acceptable to submit documents pertaining to some of the importations 

provided complete sets of documents are furnished, the underlying circumstances are the 

same, and the documents are representative of the documents used in all the transactions. Any 

differences should be explained. 

In addition, to establish whether the transaction is "at arm's length" the ruling request must 

state the relationship, if any, of the parties. In general, Customs will consider a sale between 

unrelated parties to have been conducted at "arm's length." If the parties to the requested 

transaction are not related as defined in 19 U.S.C. 1401a(g), then a statement to that effect 

should be made. However, if the parties to the requested transaction are related, then it is 

 

1

 Detailed information regarding bona fide sales and sales for exportation is contained in the Informed 

Compliance Publication, What Every Member of the Trade Community Should Know About: Bona Fide 

Sales and Sales for Exportation, November, 1996. 

2

 For example, if the importer is trying to prove that a transaction between a middleman and the 

manufacturer is a viable transaction vale, it should describe the role of all the parties (i.e., the importer, 

the middleman and the manufacturer) and furnish evidence regarding both the alleged sale between the 

importer and the middleman and the alleged sale between the middleman and the manufacturer. The 

evidence must show that the middleman purchased the goods from the manufacturer and that the goods 

were clearly destined to the United States. 

3

 An example of a complete paper trail is documentation which shows that: 1) the importer ordered 100 

Style A hair driers at $6 each from the middleman on January 5, 1996 listing the required specifications; 

2) the middleman ordered 100 Style A hair driers at $5 each from the manufacturer listing the importer's 

specifications on January 10, 1996; 3) the manufacturer shipped 100 Style A hair driers to the importer on 

February 10, 1996; the packing list shows that these goods are made to the importer's specifications; 4) 

on February 12, 1996, the middleman billed the importer $600 for 100 style A hair driers and the importer 

paid this amount by check; and 5) on February 13, 1996, the manufacturer billed the middleman $500 for 

100 style A hair driers and the middleman paid this amount by check. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

necessary to provide Customs with information which demonstrates that transaction value may 

be based on the related party sale as provided in 19 U.S.C. 1401a(b)(2)(B). (i.e., that the 

circumstances of sale indicate that the relationship did not influence the price or that the 

transaction value closely approximates certain test values). For further information regarding 

related party transactions, see Transfer Pricing; Related Party Transactions, 58 Fed. Reg. 5445, 

January 21, 1993. 

Also, in order for a particular transaction to be a viable transaction value there must be 

sufficient information available with respect to the amounts, if any, of the statutory additions set 

forth in 19 U.S.C. 1401a(b)(1) (i.e., packing costs, selling commissions, assists, royalty or 

license fees, and proceeds of any subsequent sale). The statute provides that if sufficient 

information is not available, for any reason, with respect to any of these amounts, the 

transaction value of the imported merchandise concerned shall be treated as one that cannot be 

determined. Therefore, in order to determine whether a particular transaction may be the basis 

for transaction value, the requestor must provide Customs with sufficient information regarding 

the amounts, if any, of the statutory additions set forth in 19 U.S.C. 1401a(b)(1). For example, if 

the importer claims that transaction value should be based on the sale between the middleman 

and the manufacturer, the importer must inform Customs whether the middleman provided any 

assists to the manufacturer and if so, the value of the assists and how the value was 

determined. If the importer does not have this information, transaction value cannot be based on 

this sale. 

Finally, Customs decisions will be based on the evidence presented when the ruling request 

is submitted. Although we would not be precluded from asking for additional information, this will 

not be done routinely. If insufficient evidence is provided, the claim will be denied. 

In summary, the public should be aware that Customs presumes that transaction value is 

based on the price paid by the importer and in order to rebut this presumption and prove that 

transaction value should be based on some other price, complete details of all the relevant 

transactions and documentation (including purchase orders, invoices, evidence of payment, 

contracts and other relevant documents) must be provided, including the relationship of the 

parties and sufficient information regarding the statutory additions. Customs rulings will be 

based on the evidence submitted with the request. 

Dated: December 13, 1996. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

ADDITIONAL INFORMATION 

The Internet 

The home page of U.S. Customs and Border Protection on the Internet’s World Wide 

Web, provides the trade community with current, relevant information regarding CBP 

operations and items of special interest. The site posts information -- which includes 

proposed regulations, news releases, publications and notices, etc. -- that can be 

searched, read on-line, printed or downloaded to your personal computer. The web site 

was established as a trade-friendly mechanism to assist the importing and exporting 

community. The web site also links to the home pages of many other agencies whose 

importing or exporting regulations that U.S. Customs and Border Protection helps to 

enforce. The web site also contains a wealth of information of interest to a broader 

public than the trade community. For instance, on June 20, 2001, CBP launched the 

“Know Before You Go” publication and traveler awareness campaign designed to help 

educate international travelers. 

The web address of U.S. Customs and Border Protection is http://www.cbp.gov

Customs Regulations 

The current edition of Customs Regulations of the United States is a loose-leaf, 

subscription publication available from the Superintendent of Documents, U.S. 

Government Printing Office, Washington, DC 20402; telephone (202) 512-1800. A 

bound, 2003 edition of Title 19, Code of Federal Regulations, which incorporates all 

changes to the Regulations as of April 1, 2003, is also available for sale from the same 

address. All proposed and final regulations are published in the Federal Register, which 

is published daily by the Office of the Federal Register, National Archives and Records 

Administration, and distributed by the Superintendent of Documents. Information about 

on-line access to the Federal Register may be obtained by calling (202) 512-1530 

between 7 a.m. and 5 p.m. Eastern time. These notices are also published in the 

weekly Customs Bulletin described below. 

Customs Bulletin 

The Customs Bulletin and Decisions (“Customs Bulletin”) is a weekly publication that 

contains decisions, rulings, regulatory proposals, notices and other information of 

interest to the trade community. It also contains decisions issued by the U.S. Court of 

International Trade, as well as customs-related decisions of the U.S. Court of Appeals 

for the Federal Circuit. Each year, the Government Printing Office publishes bound 

volumes of the Customs Bulletin. Subscriptions may be purchased from the 

Superintendent of Documents at the address and phone number listed above. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

Importing Into the United States 

This publication provides an overview of the importing process and contains general 

information about import requirements. The February 2002 edition of Importing Into the 

United States contains much new and revised material brought about pursuant to the 

Customs Modernization Act (“Mod Act”). The Mod Act has fundamentally altered the 

relationship between importers and U.S. Customs and Border Protection by shifting to 

the importer the legal responsibility for declaring the value, classification, and rate of 

duty applicable to entered merchandise. 

The February 2002 edition contains a section entitled "Informed Compliance." A key 

component of informed compliance is the shared responsibility between U.S. Customs 

and Border Protection and the import community, wherein CBP communicates its 

requirements to the importer, and the importer, in turn, uses reasonable care to assure 

that CBP is provided accurate and timely data pertaining to his or her importation. 

Single copies may be obtained from local offices of U.S. Customs and Border 

Protection, or from the Office of Public Affairs, U.S. Customs and Border Protection, 

1300 Pennsylvania Avenue NW, Washington, DC 20229. An on-line version is 

available at the CBP web site. Importing Into the United States is also available for 

sale, in single copies or bulk orders, from the Superintendent of Documents by calling 

(202) 512-1800, or by mail from the Superintendent of Documents, Government Printing 

Office, P.O. Box 371954, Pittsburgh, PA 15250-7054. 

Informed Compliance Publications 

U.S. Customs and Border Protection has prepared a number of Informed Compliance 

publications in the “What Every Member of the Trade Community Should Know 

About:...” series. Check the Internet web site http://www.cbp.gov for current 

publications. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

Value Publications 

Customs Valuation under the Trade Agreements Act of 1979 is a 96-page book 

containing a detailed narrative description of the customs valuation system, the customs 

valuation title of the Trade Agreements Act (§402 of the Tariff Act of 1930, as amended 

by the Trade Agreements Act of 1979 (19 U.S.C. §1401a)), the Statement of 

Administrative Action which was sent to the U.S. Congress in conjunction with the TAA, 

regulations (19 C.F.R. §§152.000-152.108) implementing the valuation system (a few 

sections of the regulations have been amended subsequent to the publication of the 

book) and questions and answers concerning the valuation system. A copy may be 

obtained from U.S. Customs and Border Protection, Office of Regulations and Rulings, 

Value Branch, 1300 Pennsylvania Avenue, NW, (Mint Annex), Washington, D.C. 20229. 

Customs Valuation Encyclopedia (with updates) is comprised of relevant statutory 

provisions, CBP Regulations implementing the statute, portions of the Customs 

Valuation Code, judicial precedent, and administrative rulings involving application of 

valuation law. A copy may be purchased for a nominal charge from the Superintendent 

of Documents, Government Printing Office, P.O. Box 371954, Pittsburgh, PA 15250-

7054. This publication is also available on the Internet web site of U.S. Customs and 

Border Protection. 

The information provided in this publication is for general information 

purposes only. Recognizing that many complicated factors may be 

involved in customs issues, an importer may wish to obtain a ruling under 

CBP Regulations, 19 C.F.R. Part 177, or obtain advice from an expert 

(such as a licensed Customs Broker, attorney or consultant) who 

specializes in customs matters. Reliance solely on the general 

information in this pamphlet may not be considered reasonable care. 

Additional information may also be obtained from U.S. Customs and Border Protection 

ports of entry. Please consult your telephone directory for an office near you. The 

listing will be found under U.S. Government, Department of Homeland Security. 

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Bona Fide Sales and Sales For Exportation to the United States 

August 2005 

“Your Comments are Important” 

The Small Business and Regulatory Enforcement Ombudsman and 10 regional 

Fairness Boards were established to receive comments from small businesses about 

Federal agency enforcement activities and rate each agency’s responsiveness to small 

business. If you wish to comment on the enforcement actions of U.S. Customs and 

Border Protection, call 1-888-REG-FAIR (1-888-734-3247). 

REPORT SMUGGLING 1-800-BE-ALERT OR 1-800-NO-DROGA 

Visit our Internet web site: http://www.cbp.gov

17