and effect of the tariff act, 1909; section 29 of that act governed the entry of the gin August 10, 1909, and it was dutiable as entered of that day. United States Court of Customs Appeals, November 30, 1910. (T. D. 31114.) Importation under law of 1897; liquidation under law of 1909.—(1) Time when duty attaches to imported merchandise. Customs duties attach to imported merchandise when it is taken into the port to which it is consigned with intent to unload, and the importer becomes obligated to pay the duty at that time. United States v. Vowell (5 Cranch, 368); United States v. Arnold (24 Fed. Cas., 872); Meredith v. United States (13 Peters, 494); G. A. 4869 (T. D. 22828). (2) Section 29 of the tariff act of 1909. The duty which the importer becomes obligated to pay is the duty provided by the law in force at the time his merchandise enters the port; and if at this time a new law is about to become effective, changing the rate of such duty, containing a provision such as is contained in section 29 of the act of 1909, he must discharge this obligation by entering the merchandise and paying the duty promptly in order to have his merchandise assessed under the old law. (3) Tender of entry tantamount to entering merchandise. The tender to the collector of a proper entry of merchandise that had theretofore arrived at the port is tantamount to entering the same; and where such entry is presented just prior to the expiration of the tariff act of 1897, and the collector refuses to receive the same, and the merchandise is subsequently entered after the act of 1909 has taken effect, section 29 of that act does not apply. United States General Appraisers, New York, November 30, 1909. (T. D. 30161; G. A. 6945.) Law applicable determined by time of entry and payment of duty.-(1) Date of effect of tariff act of 1909. The tariff act of 1909 became effective on August 6 of that year. Held that merchandise which arrived within the limits of the port of New York on the night of August 5, and for which entry was made on August 6, is dutiable under the act of 1909, in accordance with section 29 thereof. (2) Hours of business, extension of-Public necessity. Article 1389, Customs Regulations of 1908, requires that customs offices shall be kept open on all business days from 9 a. m. to 4.30 p. m., and provides further that "these hours are to be prolonged when the necessities or interest of the public service require it." Held that the matter of determining when the necessities or interests of the public service require such extension of hours is for the sound discretion and business judgment of the Government officials, and that no such necessity existed from the mere anticipation of the arrival of a vessel which had not entered the port at the regular closing hour. United States General Appraisers, New York, August 22, 1910. (T. D. 30890; G. A. 7089.) Permit of delivery.—(1) Section 29, act of 1909, construed. The phrase "under bond for warehousing, transportation, or any other purpose" in section 29 of the act of 1909 embraces within its meaning all merchandise still in the custody of the Government and, as the law expressly states, "for which no permit of delivery to the importer or his agent has been issued."-Hartranft v. Oliver (125 U. S., 525) followed. (2) Same. The duty provided by the tariff act in force at the time duty was paid, and permit of delivery issued is the duty applicable to imported merchandise. Merchandise entered while the tariff act of 1897 was in force, but on which duty was not paid and permit of delivery issued until after the act of 1909 became effective, is, under the terms of section 29, dutiable under the tariff act of 1909.-Cordero's case, G. A. 6945 (T. D. 30161), distinguished. United States General Appraisers, New York, March 18, 1910. (T. D. 30443; G. A. 6994.) Reappraisement of merchandise in bonded warehouse.-Merchandise appraised prior to August 6, 1909, not subject to reappraisement under subsection 11 of section 28, act of August 5, 1909. The provision of section 29, act of August 5, 1909, that merchandise in warehouse "shall be subject to duties imposed by this act," refers only to the rate of duty and not to the value of the goods. Treasury Department, September 17, 1909. (T. D. 29999.) SECTION 37. Racing shells.-Thayer v. United States (No. 735). Racing shells-Manufac tures of wood. Racing shells can not be held to be "vessels" in the sense in which that term is employed in section 3, Revised Statutes; and this is so without any attempt being made to set up a hard and fast rule as to what may or may not be deemed a "vessel" under that section. And a racing shell can be as little considered a "pleasure boat" under sections 37, tariff act of 1909. The importation was dutiable as a manufacture of wood, under paragraph 215, tariff act of 1909. United States Court of Customs Appeals, February 1, 1912. (T. D. 32252.) No. 26110. Racing shells.-Protest 445985 of John E. Thayer, jr. (Boston). MCCLELLAND, General Appraiser: Involved in this protest is the classification of two 8-oar racing shells imported from England into the port of Boston. The collector assessed duty on the boats at the rate of 35 per cent ad valorem under paragraph 215 of the tariff act of 1909 as manufactures of wood, and it is claimed that instead of being so assessed for duty these boats should have been subjected to a tonnage tax equal to $7 per gross ton under the provisions of section 37 of said act. Assessment affirmed. (T. D. 31757.) Foreign vessels.-1. Jurisdiction of General Appraisers-Tonnage duties on vessels. Where a tonnage duty is assessed by the collector on a vessel under said section 37, tariff act of 1909, the board has no jurisdiction of a protest claiming error in such assessment, a vessel not being imported merchandise within the meaning of section 1 of said tariff act or of section 14 of the customs administrative act as amended by said act of 1909. 2. Same-Duty on vessels. But where a duty prescribed by said section at 35 per cent ad valorem is assessed, the board is invested with jurisdiction to pass on the question of its correctness, such assessment being an exaction other than a duty on imported merchandise, and not a tonnage duty. United States General Appraisers, New York, February 9, 1910. (T. D. 30354; G. A. 6981.) Tonnage tax on the use of foreign-built yachts.-United States v. Billings, United States v. Bennett, United States v. Goelet, United States v. Pierce, United States v. Rainey. United States Circuit Court, Southern District of New York, March 8, 1911. (1) Federal taxing power-Constitutional limitations. There are no limitations upon the right of Congress to discriminate in selecting the subjects of taxation, so long as it follows the particular constitutional provisions relating to the levying of taxes. (2) Tonnage tax on the use of foreign-built yachts-Due process of law. Section 37, tariff act of 1909, imposing a tonnage tax upon the use of foreign-built yachts by citizens of the United States is in accord with all the special constitutional limitations upon the taxing power, and can not, by reason of discriminating between foreignbuilt and domestic-built yachts, be held to violate the due process of law provision of the fifth amendment to the Constitution. (3) Taxation of property outside territorial jurisdiction. The United States Government having power to afford protection to the persons and property of its citizens abroad, its taxing power is not limited by the rule that property outside the jurisdiction of a State may not be subjected to taxation there. Congress has power to tax foreign-built yachts owned by citizens and located in foreign countries. (4) Tonnage tax on the use of foreign-built yachts-Construction. The presumption is that a tax law applies only to subjects within the territorial jurisdiction; and section 37, tariff act of 1909, levying a tonnage tax on the use of foreign-built yachts by United States citizens, does not evidence any intention on the part of Congress to tax the use of such yachts in foreign waters, either by resident or nonresident citizens. (5) Owned yachts-Chartered yachts-Six months' limitation. The six months' limitation in section 37, tariff act of 1909, which provides that a tonnage tax “shall be levied and collected annually on the 1st day of September * * upon the use of every foreign-built yacht or hereafter owned or chartered for more than six months" applies to chartered yachts only. (6) Tonnage tax on the use of foreign-built yachts-Actual usePrivilege of use. The tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts was intended to cover the privilege of their use, and actual use is not a prerequisite to liability for the tax. It was the intention of Congress that such tax should be levied on the 1st day of every September following the enactment of the statute. (7) Treaties-Subsequent inconsistent statutes. When a treaty is inconsistent with a subsequent act of Congress the latter will prevail; and British-built yachts are therefore not exempt from the tonnage tax imposed by section 37, tariff act of 1909, upon the use by United States citizens of foreign-built yachts, by virtue of the treaty of 1815 with Great Britain, which provided that no higher or other duties or charges should be imposed in the United States upon British vessels than those imposed upon vessels of the United States. (8) Tonnage taxes-How enforced. An action in the nature of debt will lie against the owners or charterers of foreign-built yachts 81762-13- 48 ** now to enforce the collection of the tonnage tax imposed upon the use of such yachts by section 37, tariff act of 1909. (9) Revenue act-Senate amendment-Constitutionality. Section 37, tariff act of 1909, imposing a tax upon the use of foreign-built yachts, is not void by reason of Article I, section 7, of the Constitution, which requires that "all bills for raising revenue shall originate in the House of Representatives," the section having been proposed by the Senate as an amendment to a bill for raising revenue which originated in the House. (T. D. 32303.) Tonnage tax on the use of foreign-built yachts.-United States v. Billings. United States v. Pierce. United States v. Rainey. United States v. Bennett. United States v. Goelet. United States v. Blair. United States v. Investors' & Traders' Realty Co. United States Circuit Court. Southern District of New York, May 1, 1911. (1) Customs regulations-Judicial notice. Federal courts may take judicial notice of customs regulations. (2) Domicile-Residence. The terms "domicile" and "residence" are not synonymous. Domicile implies residence plus animus manendi. (3) Tonnage tax on the use of foreign-built yachts-Foreign built. A foreign-built yacht. within the meaning of section 37, tariff act of 1909, imposing a tonnage tax on the use of foreign-built yachts by United States citizens, is one originally constructed outside the United States; and, though changed, altered, and repaired, it remains foreign-built if the changes, alterations, and repairs do not change its identity so that, were it a vessel built in the United States, it might be rechristened without application to the Commissioner of Navigation. (4) Tonnage tax on the use of foreignbuilt yachts-Privilege of use. The tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts by United States citizens, is directed against the privilege of use, and therefore assessable to and collectible from the personal user. The defendants in these cases are liable as owners of the yachts. Why they should be described in the complaints as “managing owners" is not apparent. The only reference to managing owners in the statute seems to be for the purpose of fixing the jurisdiction of the collector of customs in cases where there are several part owners. Still. a sole owner is undoubtedly the managing owner of his yacht and there is no contention but that these defendants are the sole owners of their yachts. Consequently I think the presence of the word "managing" should not be held to affect the sufficiency of the complaint. Reported in 190 Federal Reporter, 372. (5) Tonnage tax on the use of foreign-built yachts-Notice to taxpayer. In enforcing the provisions of section 37, tariff act of 1909, imposing a tonnage tax on the use of foreign-built yachts, which "shall be levied and collected annually by the collector of customs of the district nearest the residence of the managing owner." the collector must do something by way of apprising the person who is called upon to pay the tax; and one particular collector, namely, the one of the district nearest the residence of the managing owner, being charged with the duty of levying and collecting the tax, no other collector can lawfully perform it. (6) Tonnage tax on the use of foreign-built yachts-Tonnage of rebuilt yachts. In estimating the tonnage tax imposed by section 37, tariff act of 1909, on the use of foreign-built yachts, it is proper, in the case of yachts whose tonnage has been increased in rebuilding, to compute the tax on the basis of the increased tonnage. (T. D. 32304.) |