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As a result of the Canadian International Trade Tribunal's
(CITT) decision in Loblaws, the Canada Border Services
Agency's ("CBSA") has released on September 21, 2012
D-Memorandum
D10-14-62 "Tariff Classification of Costumes" (the
"Memo") which addresses the CBSA interpretation of the
tariff classification of costumes. This interpretation is the
result of a 15-year battle between importers/retailers and Canadian
Customs authorities and will continue to cause some uncertainty for
importers/retailers in the near future.
The Memo refers to two CITT cases (Thinkway and
Loblaws) and concludes that costumes can be classified in
either Chapter 61 (high duty) and Chapter 95 (duty-free) goods. In
Loblaws, the CITT was presented durability and
re-usability arguments which did not exist in Thinkway.
The Loblaws decision was also decided after a US decision
(Rubie) which decided that "...textile
costumes...generally recognized as not being normal articles of
apparel, are classifiable as 'festive articles'. Paragraphs
9 through 11 of the D-are the re-stated CBSA position which accepts
a distinction between, for example, Halloween and high value
theatrical and rental costumes.
As will be described below, the conclusion reached in the Memo
is not really descriptive of the CITT's position nor is it
definitive. If a retailer is importing the pixie costume for the
"Dance of the Pixie King" at school, there may be a
reasonable claim that it is a duty-free festive article.
But a different dance costume could be yet a different
story...
We fear (in the spirit of the Halloween season) that potential
disagreements, regarding the durability and re-usability criteria
of these imported goods and their consequent duty rates, will
continue to haunt us.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
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