[Code of Federal Regulations]

[Title 26, Volume 16]

[Revised as of April 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 26CFR48.4061(a)-2]



[Page 85-89]

 

                       TITLE 26--INTERNAL REVENUE

 

    CHAPTER I--INTERNAL REVENUE SERVICE, DEPARTMENT OF THE TREASURY 

                               (CONTINUED)

 

PART 48_MANUFACTURERS AND RETAILERS EXCISE TAXES--Table of Contents

 

 Subpart H_Motor Vehicles, Tires, Tubes, Tread Rubber, and Taxable Fuel

 

Sec.  48.4061(a)-2  Bonding of importers.



    (a) Authority for requiring bond. Section 623 of the Tariff Act of 

1930, as amended (19 U.S.C. 1623), provides as follows:



    Sec. 623. Bonds and other security. (a) In any case in which bond or 

other security is not specifically required by law, the Secretary of the 

Treasury may by regulation or specific instruction require, or authorize 

collectors of customs to require, such bonds or other security as he, or 

they, may deem necessary for the protection of the revenue or to assure 

compliance with any provision of law, regulation, or instruction which 

the Secretary of the Treasury or the Customs Service may be authorized 

to enforce.

    (b) Whenever a bond is required or authorized by a law, regulation, 

or instruction which the Secretary of the Treasury or the Customs 

Service is authorized to enforce, the Secretary of the Treasury may--

    (1) Except as otherwise specifically provided by law, prescribe the 

conditions and form of such bond, and fix the amount of penalty thereof, 

whether for the payment of liquidated damages or of a penal sum: 

Provided, That when a consolidated bond authorized by paragraph 4 of 

this subsection is taken, the Secretary of the Treasury may fix the 

penalty of such bond without regard to any other provision of law, 

regulation, or instruction.

    (2) Provide for the approval of the sureties on such bond, without 

regard to any general provision of law.

    (3) Authorize the execution of a term bond the conditions of which 

shall extend to and cover similar cases of importations over such period 

of time, not to exceed one year, or such longer period as he may fix 

when in his opinion special circumstances existing in a particular 

instance require such longer period.

    (4) Authorize, to the extent that he may deem necessary, the taking 

of a consolidated bond (single entry on term), in lieu of separate bonds 

to assure compliance with two or more provisions of law, regulations, or 

instructions which the Secretary of the Treasury or the Customs Service 

is authorized to enforce. A consolidated bond taken pursuant to the 

authority contained in this subsection shall have the same force and 

effect in respect of every provision of law, regulation, or instruction 

for the purposes for which it is required as though separate bonds had 

been taken to assure compliance with each such provision.

    (c) The Secretary of the Treasury may authorize the cancellation of 

any bond provided for in this section, or of any charge that may have 

been made against such bond, in the event of a breach of any condition 

of the bond, upon the payment of such lesser amount or penalty or upon 

such other terms and conditions as he may deem sufficient.

    (d) No condition in any bond taken to assure compliance with any 

law, regulation, or instruction which the Secretary of the Treasury or 

the Customs Service is authorized to enforce shall be held invalid on 

the ground that such condition is not specified in the law, regulation, 

or instruction authorizing or requiring the taking of such bond.

    (e) The Secretary of the Treasury is authorized to permit the 

deposit of money or obligations of the United States, in such amount and 

upon such conditions as he may by regulation prescribe, in lieu of 

sureties on any bond required or authorized by a law, regulation, or 

instruction which the Secretary of the Treasury or the Customs Service 

is authorized to enforce.



    (b) Application for determination whether bond required--(1) 

Requirement of application--(i) In general. Except as otherwise provided 

in subparagraph (2) of this paragraph, every importer of articles 

taxable under section 4061(a) shall make application for a determination 

whether the importer is required to give bond in accordance with the 

provisions of paragraph (c) of this section. Such application shall be 

submitted in writing to the district director for the district in which 

the importer will file returns of any tax under section 4061(a) for 

which he may incur liability.

    (ii) Form of application. No form is prescribed for making the 

application required under subdivision (i) of this subparagraph, but 

such application shall include the following information:

    (a) The name of the person making the application and the address of 

his principal place of business, and, if the principal place of business 

of such person is outside the United States, the address of his 

principal place of business, office, or agency in the United States.

    (b) Information establishing that the person making the application 

is an importer of articles taxable under section 4061(a).

    (c) The kind and approximate number of automobiles, trucks, buses, 

etc., which the importer may be expected to import during an average 

calendar quarter and the approximate amount of tax under section 4061(a) 

for which the importer may be expected to incur liability in respect of 

such articles.



[[Page 86]]



    (d) Whether the importer has filed returns of tax under chapter 31 

or chapter 32 within the 2-year period immediately preceding the date on 

which the application is filed, and, if so, the internal revenue 

district in which such returns were filed.

    (e) Facts pertaining to the importer's assets and liabilities which 

will aid the district director in determining whether a bond shall be 

required.

    (2) Exceptions. The provisions of subparagraph (1) of this paragraph 

shall have no application in any case where an article taxable under 

section 4061(a) is:

    (i) Incidentally imported by an individual for his personal use.

    (ii) Brought into the United States for export to a foreign country 

or possession of the United States.

    (iii) Admitted to the United States free of duty as an instrument of 

international traffic.

    (iv) Admitted to the United States free of duty as a temporary 

importation under bond.

    (v) Returned to the United States after having been sold in the 

United States and exported.

    (c) Requirement of bond--(1) In general. If the district director 

determines that a bond is necessary in order to insure payment of the 

tax under section 4061(a), and to assure compliance with all provisions 

of the Code and regulations thereunder, with respect to articles 

imported by any importer required to make application for a 

determination under paragraph (b) of this section, such bond shall be 

given by such importer. Such bond shall be submitted, in duplicate, to 

the district director for the district in which the importer will file 

returns of any tax under section 4061(a) for which he may incur 

liability.

    (2) Execution of bond--(i) In general. The bond required under this 

paragraph shall be executed with satisfactory surety. (For provisions as 

to what will be considered ``satisfactory surety'', see subparagraph (3) 

of this paragraph.) Such bond shall be conditioned that the principal 

shall not engage in any attempt, by himself or by collusion with others, 

to defraud the United States of any tax under section 4061(a); that he 

shall render truly and completely all returns, statements, and other 

documents required of him by law or regulations in respect of such tax; 

that he shall timely pay all such tax for which he is liable; and, in 

the case of any such tax in respect of an article released from customs 

custody by reason of such bond that he shall pay such tax whether the 

liability therefor is incurred by him or by some other person as the 

importer of the articles covered by the bond, unless such other person 

makes payment of such tax on or before the due date. The bond shall be 

in an amount which the district director believes to be sufficient to 

protect the interests of the United States with respect to all articles 

taxable under section 4061(a) which are released from customs custody by 

reason of such bond, but in no event shall the bond be in an amount less 

than the approximate amount of tax under section 4061(a) for which the 

principal may be expected to incur liability during an average calendar 

quarter. Such bond shall be signed by the individual, if the principal 

is an individual; the president, vice president, or other principal 

officer, if the principal is a corporation; a responsible and duly 

authorized member or officer having knowledge of its affairs, if the 

principal is a partnership or other unincorporated organization; or the 

fiduciary, if the principal is a trust or estate.

    (ii) Cancellation clause. The bond required under this paragraph may 

be accepted with a cancellation clause incorporated therein. Such 

cancellation clause shall provide that:

    (a) Any surety on the bond may at any time give notice to the 

principal and the district director that he desires to be relieved of 

liability under said bond after a date named, which shall be at least 60 

days after the receipt of notice by the district director.

    (b) If the notice is not withdrawn in writing prior to the date 

named in the notice, the rights of the principal as supported by said 

bond shall be terminated on such date (unless supported by another bond 

or bonds). The surety shall, however, remain liable with respect to any 

tax under section 4061(a) (plus penalties and interest) the liability 

for which is incurred in respect of



[[Page 87]]



articles released from customs custody by reason of the bond.

    (c) Said notice may not be given by an agent of the surety, unless 

it is accompanied by power of attorney duly executed by the surety 

authorizing the agent to give such notice or by a verified statement 

that such power of attorney is on file with the Treasury Department.

    (iii) Changes in bond. After filing of the bond required under this 

paragraph, no change may be made in the terms thereof except with the 

consent of the surety or sureties and subject to the approval of the 

district director.

    (3) Satisfactory surety--(i) Approved surety company or bonds or 

notes of the United States. For purposes of subparagraph (2) of this 

paragraph, a bond shall be considered executed with satisfactory surety 

if:

    (a) It is executed by a surety company holding a certificate of 

authority from the Secretary as an acceptable surety on Federal bonds; 

or

    (b) It is secured by bonds or notes of the United States as provided 

in 6 U.S.C. 15 (see 31 CFR Part 225).

    (ii) Other surety acceptable in discretion of district director. For 

purposes of subparagraph (2) of this paragraph, a bond may, in the 

discretion of the district director, be considered executed with 

satisfactory surety if, in lieu of being executed or secured as provided 

in subdivision (i) of this subparagraph, it is:

    (a) Executed by a corporate surety (other than a surety company), 

provided such corporate surety establishes that it is within its 

corporate powers to act as surety for another corporation or an 

individual;

    (b) Executed by two or more individual sureties, provided such 

individual sureties meet the conditions contained in subdivision (iii) 

of this subparagraph;

    (c) Secured by a mortgage on real or personal property;

    (d) Secured by a certified, cashier's, or treasurer's check drawn on 

any bank or trust company incorporated under the laws of the United 

States or any State, Territory, or possession of the United States, or 

by a United States postal, bank, express, or telegraph money order;

    (e) Secured by corporate bonds or stocks, or by bonds issued by a 

State or political subdivision thereof, of recognized stability; or

    (f) Secured by any other acceptable collateral. Collateral shall be 

deposited with the district director or, in his discretion, with a 

responsible financial institution acting as escrow agent.

    (iii) Conditions to be met by individual sureties. If a bond is 

executed by two or more individual sureties, the following conditions 

must be met by each such individual surety:

    (a) He must reside within the State in which the principal place of 

business or legal residence of the primary obligor is located;

    (b) He must have property subject to execution of a current market 

value, above all encumbrances, equal to at least the penalty of the 

bond;

    (c) All real property which he offers as security must be located in 

the State in which the principal place of business or legal residence of 

the primary obligor is located;

    (d) He must agree not to mortgage, or otherwise encumber, any 

property offered as security while the bond continues in effect without 

first securing the permission of the district director; and

    (e) He must file with the bond, and annually thereafter so long as 

the bond continues in effect, an affidavit as to the adequacy of his 

security, executed on the appropriate form furnished by the district 

director.



Partners may not act as sureties upon bonds of their partnership. 

Stockholders of a corporate principal may be accepted as sureties 

provided their qualifications as such are independent of their holdings 

of the stock of the corporation.

    (iv) Adequacy of surety. No surety or security shall be accepted if 

it does not adequately protect the interest of the United States.

    (4) New or additional bond. The district director may require a new 

or additional bond under this section in any case where he deems it 

necessary or desirable in order to protect the interests of the United 

States.

    (d) Termination of requirement--(1) Application for relief from 

requirement. Any



[[Page 88]]



importer who has given bond as required under paragraph (c) of this 

section may make application for relief from such requirement at any 

time after the last day of the first month following the close of the 

calendar quarter in which the bond was given. Any such application shall 

be submitted to the district director to whom the bond was furnished and 

shall set forth such facts as will be of assistance to the district 

director in determining whether the relief shall be granted.

    (2) Relief from requirement. In any case where the district director 

determines that the bond required under paragraph (c) of this section to 

be given by an importer is no longer necessary to insure payment of any 

tax under section 4061(a) for which liability may be incurred by such 

importer, such importer shall no longer be required to give such bond.

    (e) Evidence required for release of imported articles from customs 

custody--(1) In general. Each article taxable under section 4061(a) 

which arrives in the United States from any foreign country or 

possession of the United States on or after the first day of the first 

calendar quarter beginning more than 60 days after the date of 

publication of this Treasury decision in the Federal Register, and which 

is imported by any person required under paragraph (b) of this section 

to make application for a determination whether bond shall be given, 

shall not, if subject to customs examination and release, be released 

from customs custody until the evidence prescribed in subparagraph (2) 

(i) or (ii) of this paragraph has been furnished by such person to the 

collector of customs.

    (2) Form of evidence. The evidence required under subparagraph (1) 

of this paragraph shall be in the form of a statement, executed, signed, 

and dated by the district director. Such statement shall show the 

following:

    (i) Bond required. If the importer is required to give bond under 

this section the statement shall show:

    (a) The total number of articles in respect of which the statement 

is given.

    (b) The model number of each such article.

    (c) The name and address of the importer of such articles.

    (d) If the articles are to be released from customs custody to a 

person other than the importer, the name and address of such other 

person.

    (e) That the importer has given a bond which the district director 

finds sufficient to protect the interests of the United States with 

respect to any tax under section 4061(a) for which liability may be 

incurred in respect of such articles.



A statement under this subdivision shall be furnished to the importer by 

the district director, upon request of the importer, in every case where 

such importer furnishes the district director with information which 

establishes to the satisfaction of the district director that the 

importer has given bond in an amount sufficient to protect the interests 

of the United States with respect to any tax under section 4061(a) which 

may become due in respect of the articles to which the request relates, 

and with such other information as is required under this subdivision to 

be shown in the statement. Such request, together with such information, 

shall be submitted by the importer immediately upon receipt by him of 

notice that articles taxable under section 4061(a) have been exported to 

his order. A separate request shall be made in respect of each shipment. 

Each statement given under this subdivision shall be executed in 

duplicate. The original of such statement shall be furnished by the 

district director to the importer and the copy shall be retained by the 

district director.

    (ii) No bond required. If the importer is not required to give bond 

under this section, the statement shall show:

    (a) The name and address of the importer.

    (b) That bond under this section is not required of such importer.



A statement under this subdivision shall be furnished to the importer by 

the district director on the date on which the district director 

determines that the importer is not required to give a bond under this 

section. Such statement shall be executed in triplicate. The original of 

such statement and one signed copy shall be furnished by the district 

director to the importer, and one copy shall be retained by the district 

director. Additional



[[Page 89]]



signed copies of such statement will be furnished by the district 

director to the importer upon request of the importer. However, once 

such statement, or a signed copy thereof, has been furnished by the 

importer to a collector of customs, the requirements imposed by 

subparagraph (1) of this paragraph are deemed to be satisfied in respect 

of all articles taxable under section 4061(a) which thereafter arrive in 

the United States for release to or for the importer in a port under the 

jurisdiction of such collector of customs, until such time, if any, as 

such collector of customs receives written notification from the 

district director or the Commissioner of Customs that such statement has 

been withdrawn.



(46 Stat. 759; 19 U.S.C. 1623)



[T.D. 6499, 25 FR 10347, Oct. 28, 1960, as amended by T.D. 7517, 42 FR 

58935, Nov. 14, 1977]