### Slip Op. 02- 23

UNITE D STATE S COURT OF INTE RNATIONA L TRADE

____________________________________ : SONY ELECTRONI CS, INC., : : Plaintiff s, :

: v. : Court No. 98-07-02438

: UNI TED STATE S, : : Defend ant. : ____________________________________: [Harbor M aintena

nce Tax re fund awa

rded pur suant to 28 U.S.C. § 158 1(a) jur isdiction w

ith post-summo ns intere st] Galvin & Mlawski ( John J. Galvin ) for plaintiff Sony Elec

tronics, Inc. Robert D. McCallum, Jr. , Assistant Attorney Gene ral, David M. Cohen , Director, Commercial Litigation Bra nch, Civil Division, United States Department of Justice ( Jeanne E. Davidson , Todd M. Hughes , and Jeffrey A. Belki n ), Richard McManus Office of the Chief Counsel, U

nited State s Customs Ser

vice, of counsel, for def

endant.

OPINION REST ANI, Judge : This matter is before the court for entry of judgment following the court’s opinion finding pre-judgment interest is not owing e xcept as provided in 28 U.S.C. § 2644. See Swisher Int’l, I nc. v . United S tates , Slip-Op. 01-144 (C t. Int ’l T rade Dec. 1 1, 2001). The court has jurisdiction in this Harbor Maintenance T ax refund suit pursuant to 28 U.S.C. § 1581(a), which is limited to actions “contesting the denial of a protest.” See Swisher Int’l, I nc.

v . United S tates , 205 F .3d 1358, 1 364 (Fe d. Cir .), cert. denied , 581 U.S. 1 036 (2000 ). Bec ause Sony timely

contested Customs’ denial of its HMT refund requests through Customs’ formalC OURT NO . 98-07-02438 PAGE 2

1 The parties agree that Plaintiff rec eived a refund in 1999 under 28 U.S.C. § 1581(i) of three payments made late

r than those at issue in these matters. See Sony v. United States , No. 95-03- 00297 (Ct. Int’l Trade 1999). Presumably , plaintiff does not seek refund under 28 U.S.C. § 1581(i) h ere bec ause of t

he two y ear time bar of 28 U.S.C. § 263 6(i) app licable t o § 1581(i) claims.

2 In its proposed judgment, Plaintiff inadvertently understated the amount due. Plaintiff listed a payment in the first quar

ter of 1990 as $50,220.86. In a letter to Plaintiff dated January 11, 2002, Defendant states that the amount is actually $50,226.86, a difference of $6.00. The cour t will consi der the h

igher a mount conc eded by

Defend ant as the correct amount a

nd calcu late accordingly

.

3 While the c ourt maint

ains juris diction un

der § 158 1(i) for

HMT ref und claim s not orig inally protested, see U.S. Shoe v. United States , 523 U.S. 360 (1998), there is no statutory pr ovision for interest on claims made under § 1581(i). See IBM Corp. v. United States , 201 F.3d 1367, 1375 (Fed.Cir. 2000). protest process, the parties are in ag reement that refunds arising under § 1581( a) are now due. The principal to be refunded pursuant to that provision remains in dispute. Plaintif f Sony Electronics, I

nc. (“Sony”)

seeks a refund of all HMT pay ments made during the last three quarters of 1990 and a ll of 1991 and 1992. 1 The total amount requested by Plaintif f is $522,886.71. 2 Defendant ar gues tha t the cour t possesse s § 1581(a

) jurisdiction only as to cer tain pay ments made

during t hat time pe

riod bec ause Plai

ntif f did not correctly

identify the rema ining pa yme nts in its pr

otests. 3 Defendant ar

gues tha t Plaintif f’s § 1581(a) refund should, the

refore , be limite d to $284,6 55.36. The parties a gree t hat Plainti f

f is, at min

imum, entitled to a refund of the pay ments totaling $284,655.36 pursuant to § 1581(a) jurisdiction. The dif ferenc e betwe en the two

amounts ( $238,231. 35) repr esents pa yme nts made b y Pla

intif f during the same period, a s verifie d by

Customs, but

which we

re not inc luded in th e quarte rly reportsC OURT NO . 98-07-02438 PAGE 3

4 To the extent necessary , the court considers these additional pay ments conceded by

defendant as amendments to Plaintiff’s protests. The court may allow amendments to assert claims which could have been made in the original protest. See Schieffelin & Co. v. United States , 61 Cust. Ct. 397, 401, 294 F. Supp. 53, 56 (Cust.Ct. 1968) (claim for duties added to claim for taxes on same merchandise), aff’d 57 C.C.P.A. 66, 424 F.2d 1396 (C.C.P.A.), cert. denied 400 U.S. 869 (1970). Although a party may amend its protest at the a gency level pursuant to 19 U.S.C. § 1514(c)(1)(D), it would have been futile for Plaintiff to amend these protests because, at that time, Customs was not granting any HMT refund denial protests brought on constitutional grounds.

5 19 C.F.R. § 174.14(a)(6) requires that “[t]he nature of, and justification for the obje ction set forth distinctly and specifica lly with respect to ea

ch category , payment, claim, dec ision, or refusal . . . .” attache d to Plaintif

f’s prote sts. 4 The dispu

te, ther efore, is whethe

r these a dditional p ay

ments were protested. Section 514 of the T

arif f Act enu merates the requ irements for a va lid protes t. 19 U.S.C. § 1514. Section 1514(c)(1) requires that a protest “must set forth distinctly and specifically

. . . each [Cust

oms] decisi on . . . as to

which pr otest is ma

de . . . .” Althoug

h the “de cisions” tradition ally

proteste d involve i

mports, the

Feder al Circui t determi ned that a denial of an HMT refund request is a protestable decision. See Swisher , 205 F .3d at 1369. Defendant ar gues tha t, under § 1514(c)(1) and its implementing reg ulation, 5 Plaintif

f was required to explicitly identify each contested HMT pay

ment in its protest. The dispute at hand is a legal one and no material facts are at issue. Genera lly , a protest “must be suf

ficientl y di stinct and

specific to enable the Customs Service to know what is in the mind of the protestant” at the time of the protest. Computime, Inc., v . United S tates , 772 F .2d 874, 87 8-79 (F ed. Cir . 1985). “The test for determining the validity and scope of a

protest is objective and independent of a Customs of ficial’s subjectiveC OURT NO . 98-07-02438 PAGE 4

reaction to it.” See Power -One Inc. v . United S tates , 23 CIT 959, 964, 83 F . Supp. 2d 1300, 1305 (199 9). I f the pro test rea sonably apprise s the colle ctor of th e object ion, a pro test is leg ally suf ficient. See Mattel, Inc. v . United S tates , 72 Cust. Ct. 257, 377 F . Supp. 955 (1974). The court generally

construes a protest in favor of finding it valid unless the protest “g ives no indication of the reasons why the collector’s action is alleged to be err oneous . . . .” See Koike Aronson, Inc., v

. United S tates , 165 F .3d 906, a t 908 (Fe d. Cir

. 1999 ) (quo ting W

ashington Int’l Ins. Co. v . United S tates , 16 CIT 599, 602 (1992)). Customs protest procedures w ere not created to address HMT refund requests and, theref ore, the court will not rigidly construe ambiguities agains t Plaintif

f. Customs ori ginal pr

otest pro cedure s were in

tended to allow impo rters the

ability to contest more traditional Customs decisions, such as liquidation or reliquidation. See , e.g. , Mitsubishi Electronics America, Inc., v . United S tates , 18 CIT 929, 932, 865 F . Supp. 877, 880 (1994) (“The protest informs Customs that corrections ef fected by a reliquidation have not appeased the importer and explains why the importer finds particular corrections unsatisfactory

.”). Because Customs had not created pr ocedures and related forms to address the unique an d unfore seen pro

blems rel ated to th e HMT on e xports, Plain tif f had no other option than to file its constitutional protests on Customs’ standard protest form, Customs Form 19. Plaintif f filed two protests on separate Customs Forms 19, both dated October 23, 1995. In the first pro test, Plain

tif f requested a “refund of the Ha rbor Maintenance Fee (HMF ) deposited with respect to the 2 nd , 3 rd , and 4 th quarters of 1990, and 1 st through 4 th quarters of 1991, 1992 and 1 st quarter of 1993.” Def.’s App., T ab B at 1 . In th e second

protest, Plaintif

f requested refund of payments made dur

ing the “2 nd , 3 rd , and 4 th quarters of 1992 and the 1 st and 2 nd quarters of 1993.”C OURT NO . 98-07-02438 PAGE 5

6 The Customs form requires the protestor to submit its “importer” number. Because the Export Clause prohibits any tax on exports, see U.S. Shoe , 523 U.S. 3 60, Customs would not ne ed to identify exporters in its protest form except in the context of an exporter’s protest of a denial of an HMT refund request. That Form 19 identifies par ties protesting HMT refund denials by “importer” number is indicative of Form 19's over all inadequacies here. Def.’s App., T

ab C at 3. Both forms clearly state the reason for protest: “I t is claimed that the HMF was unconstit utionally assesse d on the exports cove red by the Quar terly Summary

Reports and should be refunded pursuant to the Amended Quarte rly Reports.” De fendant ar gues tha t, because the time pe

riods ide ntified in the two pr

otests ove rlap and because dif ferent quarter ly reports are atta ched to e ach for

m, this is “c onclusive

evidenc e” that Pl aintif

f intended each protest to include o nly

specific pay ments. The

court fir st addre sses the s

ubmission o f separ

ate protests. Defendant ar

gues tha t Plaintif f submitted two protests covering the same time period because Plaintif f’s protests were directed at specific payments, not all pay

ments, made during that time p eriod. I

t is more lik

ely that Plaint

if f submitted two protests because it was unclear whether a single protest would suf ficientl y no tify Customs of Pl aintif

f’s claims. Customs Form 19 identifies the protesting party by “importer”

number

. 6 See Form 19, Section 1 - “Importer and Entry Ide ntificat ion.” Plai

ntif f’s first protest identifies “Sony Ele ctronics, Inc.” as the importer and lists the importer number as 22-28788067NY . Def.’s App., T

ab B at 1. The second protest also identifies “Sony Electronics, Inc.” a s the importer but lists the importer number as 22-2878067SD. Plaintif f presum ably

has two imp orter nu

mbers be cause So ny e

xports dif ferent goods from dif ferent ports or through two separate exporters. The attached quarterly reports confirm that Plaint

if f made HM T pay

ments unde

r both numb ers. I

t is reaso nable to a ssume tha t Plaintif fC OURT NO . 98-07-02438 PAGE 6

submitted s eparat

e protes t forms be cause Pla intif f was unc lear whe

ther it co uld conte st pay

ments made under one identification number in a protest specified unde r another number

. That Plaintif f submitted separate forms is more likely a result of Customs’ lack of direction than Plaintif f’s inten t to protes t only

specific pay ments. I n any case, Pla intif f’s subjective intent is no more at issue than is Customs’ subjective understanding of the protests. The court finds that Plaintif f’s separate submissions should be interpreted as a rea sonable attempt to cover as many claims as possible given the forms provided. The court, there fore, turns to Defendant’s

ar gument r egard ing the q uarter ly r eports a ttached to Plaintif

f’s protests. Prior to U.S. Shoe , Customs required all exporters to file Harbor Maintenance Fe e Amended Quarterly

Summary Reports (Customs Form 350) to indicate the va lue of goods exported and the amount of HMT paid during that quarter

. See Swisher , 205 F .3d at 1361 (descr ibing Cus toms requ

irements for submit

ting Fo rms 350). Plaintif f attach ed sever

al of its quarterly r

eports to its protests. The reports directly correspond to the importer identification numbers d

iscussed previous ly

. For example, only quar

terly repor

ts associated with 22- 28788067N

Y are a ttached to Plaintif

f’s first protest, which identifies Sony a s importer number 22-28788067NY

. Likewise, only

quarterly r

eports associated with Sony 22-2878067SD we re attached to the second protest, which identifies Sony as importer number 22-2878067SD. Becau se both of

Plaintif f’s protests request that the HMT pay ments “be refunded pursuant to the Amended Quarterly

Reports,” Defendant ar

gues tha t Plaintif f’s ref und should

be limited

to those pay ments iden

tified in t he quart erly reports attache d to Plaintif

f’s Forms 19. Regar dless of th e docume

nts attac hed, the c ore of Pla

intif f’s refund requests and subsequent protests was that the HMT was unconstitutionally assessed on exports. DefendantC OURT NO . 98-07-02438 PAGE 7

would hav e the cou

rt deter mine that Pl aintif

f convey ed to it only

a protes t of the sim

ultaneou sly document ed pay ments as u

nconstitu tional an d that the Export Claus e somehow did not app ly to those payments not listed on the attachments. The court finds Defendant’s sugge stion untenable. It is reasonable to assume that, because of the aforementioned inade quacies of the protest p rocess, Plaintif

f’s attachments were an ad hoc me th od of su pp le me nt in g a ne ce ss ar il y ad hoc protest a

nd, there fore, no t repre sentative of the br eadth of Plaintif f’s clai m. That Pla

intif f submitted two separate protests or attached specific quar terly repor

ts to those protests is not repres entative

of or limiti

ng on Pla intif f’s overall claim that the HMT is unconstitutional and that Plaint

if f was requesting refund of all HMT pa yments on exports for those quarter s specific ally

claimed on the fac e of the p rotests. “[H]owever cry

ptic, inartistic, or poorly draw n a communication may be , it is suf ficient as a protest for purposes

of section 514 if it c onvey s enoug h informa tion to app rise knowledgeable of

ficials of the importer's intent and the relief soug ht.” Mattel , 72 Cust.Ct. at 262, 377 F . Supp. at 9 60. Bec ause Plai ntif f was limit

ed by the proc edures a

nd forms a

vailable and because the protest was based on an ove rarching constitutional claim, the court finds that Defend ant was r easonab ly a

pprised t hat Plainti f

f object ed to the d

enial of a refun d of all HM T payments on exports during the listed quar ters. The cour t finds tha t Plaintif f’s §1581 (a) cla

ims include

all HMT pa

yme nts on expor

ts made dur ing the q uarter s mentione d in the pr otests. Judg

ment shall

enter a ccordin gly

.

________________________ Jane A. Restani JUDGE Dated: New Y

ork, New Y

ork This 26 th day of F ebruary , 2002.