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Trade Court Litigation on Women’s Shelf Bra Garments Presents Duty Refund Opportunities

Friday, December 16, 2011

Two pending court cases present importers of women’s tops containing shelf bras with a unique opportunity to secure very significant refunds of duties assessed on such articles. To obtain maximum refunds, however, importers must act quickly to preserve their right to refunds on past and current importations.

The U.S. Court of International Trade is currently considering two test cases, Lerner New York, Inc. v. United States and Victoria’s Secret Direct v. United States, concerning the proper classification of tank tops, camisoles and similar articles with built-in supporting inner fabric liners, or shelf bras. These cases challenge the position of U.S. Customs and Border Protection that such articles are merely regular outerwear garments, which carry a duty rate as high as 32% depending on fiber content, rather than body supporting garments (brassieres and similar articles), which are dutiable at 6.6% under HTSUS 6212.90.

The test cases involve two styles of articles, although the court’s determinations will likely impact a range of shelf bra garments fitting slightly different descriptions. The first style top is made of 92% nylon and 8% spandex knit fabric and has an inner fabric layer (i.e., shelf bra) that covers and fits snugly through the bust. The inner fabric lines both the front and back of the top portion of the garment with a wide elastic band at the bottom that fits beneath the wearer’s bust. The bottom of the shelf bra is not attached to the outer layer of the top. The second style garment is made of 95% cotton and 5% spandex knit fabric and is described as a sleeveless, spaghetti strap shelf bra tank top or “bra-top.” It is similar in construction to the first style. Customs classified these garments under HTSUS 6114.30 (28.2%) and HTSUS 6109.10 (16.5%).

If your company has recently imported garments similar to these and paid high duty rates, you may be eligible for a refund of duties should the court rule in favor of Lerner and Victoria’s Secret Direct, but you must act now to be able to secure the largest refund possible. The law firm of Sandler, Travis & Rosenberg offers a program to help importers preserve their rights to obtain such refunds, and in fact ST&R’s experienced litigation team has helped clients obtain very significant duty refunds on a range of imported products over its 30+ year history. For more information or a copy of our contingency fee agreement, please contact Ken Wolf or Arthur Purcell in New York at (212) 883-1300 or Elise Shibles in San Francisco at (415) 986-1088.

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