
    834 F.Supp. 1384
    Torrington Co., plaintiff v. United States, defendant, and NMB Thai Ltd., Pelmec Thai Ltd., and NMB Corp., defendant-intervenors
    Court No. 91-08-00564
    (Dated October 8, 1993)
    
      Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., Geert De Prest, Margaret E. O. Edozien, Margaret L.H. Png, Lane S. Hurewitz, Julie Chasen Ross and Robert A. Weaver) for plaintiff The Torrington Company.
    
      Frank W. Hunger, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Velta A. Melnbrencis and Jane E. Meehan); of counsel: John D. Mclnemy, Acting Deputy Chief Counsel for Import Administration, Alicia Greenidge, Dean A. Pinkert, Craig R. Giesze and Stacy J. Ettinger, Attorney-Advisors, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
    
      Arent Fox Kintner Plotkin and Kahn (Michele N. Tanaka and Peter Sultan) for defendant-intervenors NMB Thai Ltd., Pelmec Thai Ltd. and NMB Corporation.
   Opinion

Tsoucalas, Judge:

Plaintiff, The Torrington Company (“Torring-ton”), commenced this action to challenge certain aspects of the Department of Commerce, International Trade Administration’s (“ITA”) final results in the first administrative review of imports of antifriction bearings from Thailand. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From Thailand; Final Results of An-tidumping Duty Administrative Review, 56 Fed. Reg. 31,765 (1991). Substantive issues raised by the parties in the underlying administrative proceeding were addressed by the ITA in the issues appendix to Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From the Federal Republic of Germany; Final Results of Antidumping Duty Administrative Review (“Issues Appendix”), 56 Fed. Reg. 31,692 (1991).

Background

In Torrington Co. v. United States, 17 CIT 541, 545, 823 F. Supp. 945, 949 (1993), this Court remanded this case “to the ITA to add the full amount of [indirect taxes] paid on each sale in the home market to [foreign market value] without adjustment.”

On July 22, 1993, the ITA filed with this Court its Final Results of Redetermination Pursuant to Court Remand, The Torrington Company v. United States Slip Op. 93-98 (June 8, 1993) (“Remand Results”). Since there was no value added tax (“VAT”) in Thailand at the time of the underlying administrative review but there were business and municipal taxes which were not collected by reason of the export of the subject merchandise to the U.S., in its Remand Results the ITA stated that it would add the amount of these indirect taxes to foreign market value (“FMV”) for sales in the home market without adjustment and also added the exact same amount to United States price (“USP”). Remand Results at 3. ITA did not implement its stated methodology because it would only change cash deposit rates which are no longer in effect. Id. at 3-4.

Discussion

ITA’s final results filed pursuant to a remand will be sustained un-less that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B) (1988). Substantial evidence is “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); Alhambra Foundry Co. v. United States, 12 CIT 343, 345, 685 F. Supp. 1252, 1255 (1988).

Torrington challenges the ITA’s treatment of Thailand’s indirect business and municipal taxes. Memorandum of The Torrington Company in Support of its Motion for a Second Remand (“Torrington’s Memorandum”) at 2-8.

In its Remand Results, as instructed by this Court, the ITA articulated its new methodology for dealing with indirect taxes which involves adding the amount of indirect taxes paid on each sale in the home market to FMV without making a circumstance of sale (“COS”) adjustment to this amount. In addition and on its own initiative, the ITA will add the exact same amount to USP instead of following its usual practice of applying the ad valorem tax rate to the net USP after all adjustments have been made and adding this amount to USP Remand Results at 3; see Issues Appendix, 56 Fed. Reg. at 31,729. ITA’s rationale for its new approach is based on its interpretation of the United States Court of Appeals for the Federal Circuit’s recent opinion on the VAT issue in Zenith Elecs. Corp. v. United States, 988 F.2d 1573, 1580-82 (1993). Remand Results at 2.

Defendant argues that the ITA’s new methodology is in accord with Zenith, 988 F.2d at 1580-82. The court in Zenith held that the ITA was not allowed to make a COS adjustment to FMV to achieve tax neutrality by eliminating the so-called multiplier effect of 19 U.S.C. § 1677a(d)(1)(C) (1988). The court reasoned that 19 U.S.C. § 1677a(d)(1)(C) is the sole provision of the antidumping duty statute that deals with the treatment of VATs or indirect taxes. As a result, 19 U.S.C. § 1677b(a)(4)(B) (1988), which allows adjustments to FMV for differences in circumstances of sale, does not apply and cannot be used to achieve tax neutrality. Zenith, 988 F.2d at 1580-82.

The court also stated that:

By engaging in dumping, the exporters themselves are responsible for the multiplier effect. The multiplier effect does not create a dumping margin where one does not already exist. Only when pre-tax FMV exceeds USP and a foreign nation assesses an ad valorem domestic commodity tax does section 1677a(d)(1)(C) operate to accentuate the dumping margin. Without a dumping margin (when pretax FMV equals [or is less than] USP), even assessment of an ad valorem tax creates no multiplier effect. The multiplier effect thus occurs only when a dumping margin already exists. If a foreign manufacturer does not export its wares at less than fair value, it will not suffer disadvantage from the operation of section 1677a(d)(1)(C).
Moreover, the enactment history of section 1677a(d)(1)(C) does not suggest that Congress sought tax neutrality when it fashioned the adjustment provision.

Zenith, 988 F.2d at 1581-82. It is clear from this statement that tax neutrality is irrelevant to the proper application of 19 U.S.C. § 1677a(d)(1)(C). See also Federal-Mogul Corp. v. United States, 17 CIT 88, 99, 813 F. Supp. 856, 864-65.

Defendant argues that the court in Zenith only decided that the ITA could not make a COS adjustment to FMV to obtain tax neutrality. Defendant argues that the court’s decision does not mean that the ITA cannot adopt an interpretation of the statute which would result in tax neutrality. Defendant states that its position is affirmed by footnote 4 in Zenith which states:

The statute by its express terms allows adjustment of USP in the amount of taxes on the merchandise sold in the country of exportation. While perhaps cumbersome, Commerce may eliminate the multiplier effect by adjusting USP by the amount, instead of the rate, of the ad valorem tax.

988 F.2d at 1582 n.4 (emphasis in original); Defendant’s Opposition to Motion of The Torrington Company for Second Remand (“Defendant’s Opposition”) at 3-8.

Defendant argues that there are two valid interpretations of the statutory language in regard “to whether the tax to be added to USP is (1) the tax that would have been charged on the exported merchandise, had the foreign country taxed exports; or (2) the tax that would have been charged on the exported merchandise, had it been sold in the foreign market.” Defendant’s Opposition at 6. ITA has chosen the second interpretation and defendant argues that this interpretation is entitled to substantial deference citing Chevron v. Natural Resources Def. Council, 467 U.S. 837 (1984). Defendant’s Opposition at 6.

Torrington argues that footnote 4 in Zenith is merely dicta and not the holding of the Court of Appeals on this issue. Torrington’s Memorandum at 6-7.

In addition, Torrington argues that footnote 4 is an inaccurate statement of the law. Torrington argues that 19 U.S.C. § 1677a(d)(1)(C) states that “the amount of any taxes imposed in the country of exportation directly upon the exported merchandise * * * which have been rebated or which have not been collected, by reason of the exportation * * *” must be added to USP Torrington’s Memorandum at 6-7 (emphasis in original). Nowhere does the statute discuss using the amount of tax paid on home market sales.

This Court remanded this issue for the ITA “to add the full amount of [indirect taxes] paid in the home market to FMV without adjustment * * *.” Torrington, 17 CIT at 545, 823 F. Supp. at 949. Nowhere did this Court discuss changing the ITA’s method of adding an amount to USP pursuant to 19 U.S.C. § 1677a(d)(1)(C) to account for Thailand’s indirect taxes. In fact, this Court implicitly affirmed the ITA’s methodology for adjusting USP in its discussion of the tax base issue in Federal-Mogul, 17 CIT at 99-100, 813 F. Supp. at 865-66.

Defendant relies on Zenith to support its position. Although the ITA’s Remand Results do not explicitly cite to footnote 4, this is the ITA’s primary support for its mistaken belief that its new indirect tax methodology is not in conflict with the body of the Zenith opinion and the language of the statute. Defendant’s Opposition at 4-6. However, this Court finds that footnote 4 is clearly at odds with the body of Zenith and the language of the statute and is dicta.

The court in Zenith states that “[t]itle 19 explicitly requires Commerce to increase USP by the amount of tax that the exporting country would have assessed on the merchandise if it had been sold in the home market.” 988 F.2d at 1580 (emphasis added). It is clear from this statement, as well as the language of the statute itself, that the sale price to which the indirect tax rate is to be applied is the USP calculated at the same point in the chain of commerce as where Thailand’s tax authorities apply Thailand’s indirect tax rate to home market sales. For example, if when taxing home market sales, Thailand’s tax authorities apply Thailand’s indirect tax rate to an ex-factory price to calculate the amount of tax due, the ITA is required to apply Thailand’s indirect tax rate to an ex-factory USP and add the resulting amount to USP 19 U.S.C. § 1677a(d)(1)(C).

Support for this position is provided by the Court of Appeals for the Federal Circuit’s recent decision on the tax base issue in Daewoo Elecs. Co. v. United States, Nos. 92-1558, -1559, -1560, -1561, -1562 (Fed. Cir. Sept. 30, 1993). The court in Daewoo stated that 19 U.S.C. § 1677a(d)(1)(C)

mandates a calculation of imputed tax amounts to be added to the USP but does not specify to which USP the Korean taxes are to be applied as the product moves to the consumer. This determination is important because the Korean taxes are not a specific amount, but instead ad valorem in nature; and it is difficult because the question is a hypothetical. The Korean taxes must be applied to sales of goods at some discrete moment in the stream of commerce with or in the United States, a different market from that in which the taxes should be levied, but are not, because of exportation.

Daewoo, Nos. 92-1558, -1559, -1560, -1561, -1562 at 18-19 (emphasis added). In the Daewoo case, the ITA determined that evidence on the administrative record showed that the Korean tax authorities applied their ad valorem taxes to “the net price of the delivered television receivers to unrelated dealers.” Id. at 19. Therefore, the ITA applied the Korean tax rate to the comparable USP i.e., the price to the first unrelated purchaser. Id. at 19-20. The court went on to affirm the ITA’s methodology of determining where in the stream of commerce the Korean authorities applied the ad valorem tax rate in the home market and applying the same tax rate to USP calculated at the same point in the chain of commerce and adding this amount to USP Id. at 18-22.

Therefore, since as a matter of law the ITA has incorrectly adjusted USP for Thailand’s indirect tax rate, and since there is no just reason for delay in the entry of final judgment on this issue, this Court is entering final judgment on this issue ordering the ITA to apply Thailand’s indirect tax rate to USP calculated at the same point in the stream of commerce where Thailand’s tax authorities apply indirect taxes on home market sales and add the resulting amount to USE This case is dismissed. 
      
       Although Torrington challenges the ITA’s treatment of value added taxes, its arguments also apply to the other types of indirect taxes present in this case.
     
      
       19 U.S.C. § 1617a(d)(1)(C) states:
      (d) Adjustments to purchase price and exporter’s sales price
      The purchase price and the exporter’s sales price shall be adjusted by being—
      (1) increased by—
      *******
      (C) the amount of any taxes imposed in the country of exportation directly upon the exported merchandise, or components thereof, which have been rebated, or which have not been collected, by reason of the exportation of the merchandise to the United States, but only to the extent that such taxes are added to or included in the price of such or similar merchandise when sold in the country of exportation; * * *.
      The multiplier effect can be seen in the following example taken from Zenith Elecs. Corp. v. United States, 10 CIT 268, 273 n.9, 633 F. Supp. 1382, 1386 n.9 (1986), appeal dismissed, 875 F.2d 291 (Fed. Cir. 1989):
      Suppose the pre-tax home market price for a certain model of Japanese television is equal to $100, while the purchase price for the same model when sold for export to the United States is $90. In this tax-free comparison, the absolute margin of dumping would be $10 ($100 — $90) and the ad valorem margin would be 11.1% ($10/$90).
      Since the Japanese commodity tax is 15%, the tax on the home market sale equals $15 (15% of $100). If we assume that this tax is fully shifted forward to the home market purchaser, then the after-tax home market price equals $115. By contrast, the amount of tax rebated or not collected on the exported television because it was sold for export would equal only $13.50 (15% of $90). Hence, if the United States price were increased by this latter amount, in accordance with the terms of 19 U.S.C. 1677a(d)(1)(C), the adjusted calculation of USP would be $103.50 ($90 + $13.50). The absolute margin, determined by subtracting the adjusted USP from the after-tax home market price, would be $11.50 ($115-$103.50), an amount greater than the $10 absolute margin calculated in the tax-free comparison, above. The ad valorem margin, however, would be identical, at 11.1% ($11.50/$103.50).
     