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

Monday, December 19, 2011
Sandler, Travis & Rosenberg Trade Report

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.

You can also stay up-to-date on the latest developments on this issue by subscribing to ST&R’s WorldTrade\INTERACTIVE daily e-newsletter.

Sandler, Travis & Rosenberg, P.A. (ST&R) is a customs and international trade law firm concentrating its practice in assisting clients with the movement of goods, personnel and ideas across international borders. ST&R provides governments, manufacturers, importers, exporters and retailers the advice and counsel they require to succeed amid the constantly changing demands of global trade.

Sandler & Travis Trade Advisory Services Inc. (STTAS), which is affiliated with ST&R, is recognized as the leading provider of customs and international trade advisory services to the public and private sectors. STTAS offers hands-on global import/export solutions for multinational companies eager to increase their ability to move merchandise across international borders in an efficient, seamless and compliant manner. STTAS also assists governments throughout the world in building customs agencies and procedures that expand import and export capabilities, reduce risk factors and comply with international standards.

Combined, ST&R and STTAS are currently the largest provider of customs and international trade services worldwide with 535 global trade professionals located in 12 offices in 7 countries. Our success is based on a combination of unsurpassed domain expertise, proprietary technology and business process best practices.

For more information about ST&R and STTAS, please visit our Web site.

Published by Sandler, Travis & Rosenberg, P.A.

NOTE: Information contained herein is of necessity a summary of complicated and fact-specific issues. It is not intended to convey legal advice, and receipt of it does not constitute or create an attorney-client relationship. Before you act on any information provided in this document, you should seek professional advice regarding its applicability to your specific circumstances.

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