United States of America v. NISE USA LLC

Filing 13

ORDER granting 12 Motion for Summary Judgment. Judgment will be entered in favor of the United States and against NISE in the amount of $32,610.35, plus interest accrued to judgment, pursuant to 7 C.F.R. § 1463.9(d), and interest accru ed until paid in full, pursuant to 28 U.S.C. § 1961. IT IS FURTHER ORDERED that NISE shall, within 15 days from the date of this order, submit to the Commodity Credit Corporation in accordance with 7 U.S.C. § 518d(h): (1) its Report of To bacco Product Removals Subject to Tax for the Tobacco Transition Payment Program Assessment for June 200--June 2010; (2) copies of its CBP Form 7501 for June 2005 and June 2007--June 2010; and (3) copies of its TTB Form 5220.6 for July 2005--June 2006 and October 2006--June 2010. (See document for further details). Signed by Judge Frederick J Martone on 10/4/11.(LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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United States of America,
Plaintiff,

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vs.

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NISE USA, LLC,
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Defendant.
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No. CV-11-0126-PHX-FJM
ORDER

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The United States seeks to collect a debt owed by NISE USA, LLC, an importer of

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tobacco products, under the Fair and Equitable Tobacco Reform Act of 2004, 7 U.S.C. §

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518d (“FETRA”).

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Commodity Credit Corporation (“CCC”), to impose quarterly assessments on manufacturers

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and importers of tobacco products to finance a program that helps tobacco farmers make the

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transition from a regulated to a free market. Id. § 518d. Manufacturers and importers may

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administratively contest an assessment within 30 business days of receiving notice of the

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assessment. Id. § 518d(i). Judicial review is available only after administrative remedies are

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exhausted. Id. § 518d(j).

The Act directs the Secretary of Agriculture, acting through the

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The government contends that NISE failed to pay its FETRA assessments and failed

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to provide records of its tobacco products imports, as required by 7 U.S.C. § 518d(h). The

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government now seeks judgment in the amount of NISE’s current delinquent debt of

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$32,610.35, plus interest. The government also requests an injunction compelling NISE to

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provide CCC with the records of its tobacco products imports required under FETRA.

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The court has before it the United States’ motion for summary judgment (doc. 12).

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NISE has not responded and the time for doing so has passed. Under LRCiv 7.2(i), if a party

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“does not serve and file the required answering memoranda . . . such non-compliance may

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be deemed a consent to the . . . granting of the motion and the Court may dispose of the

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motion summarily.”

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The government contends that NISE failed to pay its FETRA assessments for two

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quarters in 2005, one quarter in 2006, and 3 quarters in 2007. NISE filed an administrative

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challenge to the 2005 assessments only. Therefore, its challenges to the 2006 and 2007

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assessments are not administratively exhausted, and judicial review of these claims is not

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available. Id. §§ 518d(i), (j)(1).

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On administrative appeal of the 2005 assessment, the Secretary of Agriculture

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concluded that the assessment complied with FETRA. NISE has waived any judicial review

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of the Secretary’s decision by failing to file a petition for review or to respond to the

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government’s motion for summary judgment.

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Accordingly, IT IS ORDERED GRANTING the United States’ motion for summary

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judgment (doc. 12). Judgment will be entered in favor of the United States and against NISE

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in the amount of $32,610.35, plus interest accrued to judgment, pursuant to 7 C.F.R. §

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1463.9(d), and interest accrued until paid in full, pursuant to 28 U.S.C. § 1961.

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IT IS FURTHER ORDERED that NISE shall, within 15 days from the date of this

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order, submit to the Commodity Credit Corporation in accordance with 7 U.S.C. § 518d(h):

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(1) its Report of Tobacco Product Removals Subject to Tax for the Tobacco Transition

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Payment Program Assessment for June 2007—June 2010; (2) copies of its CBP Form 7501

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for June 2005 and June 2007—June 2010; and (3) copies of its TTB Form 5220.6 for July

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2005—June 2006 and October 2006—June 2010.

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DATED this 4th day of October, 2011.

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