Use Availability Is Enough for Duty-Free Classification for Tools Temporarily Exported, Porsche Says

Tools of the trade returned after temporary use abroad do not have to been actually used to be eligible for duty-free treatment under subheading 9801.00.85 Porsche Motorsports North America, said in a reply brief filed June 25. CBP has ruled in the past that it’s enough for goods to be made available for use to qualify for duty-free treatment, PMNA said in the brief, filed in support of its motion for judgment in a case at the Court of International Trade (Porsche Motorsports North America, Inc. v. U.S., CIT # 16-00182).

“Defendant’s position that each and every article exported and returned be actually and physically put to use is neither supported by logic or its own administrative interpretations,” PMNA said. “Defendants position assumes that the claimant, at the time of original export will know exactly what items (whether they be tools, equipment, or parts) will be necessary or required for the repair. What if a particular book or hoist is exported, but then it is not needed? Should the articles, when returned to the U.S. not be eligible for treatment under 9801.00.85?”

That PMNA provides the parts to race teams rather than using them itself also does not render the parts ineligible for the chapter 98 subheading, the brief said. “There is no such requirement in subheading 9801.00.85 … that requires the articles subject to the claim be ‘used’ by the same person or party that engaged in the export and their subsequent reimport,” PMNA said. The Justice Department’s contention that PMNA operates more like a vendor is also misplaced, PMNA said. Race promoters restrict Porsche’s activities at track events, and “such restrictions include a prohibition on sales to the general public as well as non-Porsche race teams,” it said.

And while DOJ argues that the auto parts do not qualify as “implements, instruments and tools of the trade” classifiable in subheading 9801.00.85, its own definitions contradict that, PMNA said. DOJ’s “definition of the term ‘implement’ includes … ‘a device used in the performance of a task.’ PMNA’s vehicle parts and components are, however, ‘implements’ because they are used in the ‘performance of a task,’ that task being the repair of race cars,” PMNA said. “Likewise, the vehicle parts and components that are in issue constitute ‘tools’ because they are ‘something used in performing an operation or necessary in the practice of a vocation or profession.’”