The Broker's Duty When the Client Understates Value
A customs broker prepares entries for a small importer of home goods. During a routine review, the broker notices that the importer has been declaring the invoice price but omitting the cost of ocean freight and the value of foreign inland freight to the port of export, which the importer's forwarder had quoted separately. The omission has occurred on roughly 40 entries over 18 months, with an estimated underpaid duty of $9,000. The importer's owner says the forwarder told him freight is never dutiable and asks the broker to keep filing the same way because the amounts are small and CBP is unlikely to audit. The broker also learns the importer recently received a CBP request for information covering the period.
1. Analyze the broker's obligations regarding the past entries and the pending CBP request for information.
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The broker has a duty of reasonable care and a duty of candor. The omission of international freight and related charges from customs value is an error: under 19 U.S.C. 1401a(b)(1)(E), the cost of transportation to the place of importation is a statutory addition to the price actually paid or payable. The forwarder's advice is wrong.
The broker must not continue filing incorrect entries. It should: (1) stop the practice immediately and correct the valuation methodology going forward; (2) document the error and quantify it (approximately $9,000 in underpaid duty across 40 entries); (3) respond to the CBP request for information truthfully and completely, because a false or incomplete response to a formal CBP request can itself create liability; and (4) advise the importer of the option of a prior disclosure under 19 U.S.C. 1592(c)(4) before CBP formally notifies the importer of the examination, which can reduce or eliminate penalties.
The broker cannot rely on the client's instruction to keep filing incorrectly. Following a client's direction does not excuse a broker from its own statutory and ethical obligations, and the broker should escalate internally and consider whether to continue the engagement if the client refuses to correct course.
2. The importer asks the broker to handle the CBP request for information. Explain the risks of the broker's response and the ethical considerations.
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The response must be accurate, complete, and timely. The broker should not minimize the omission, omit entries, or characterize the freight as non-dutiable to protect the client. A response that conceals the error can expose both the importer and the broker to penalties for false statements and can aggravate the outcome of the CBP review.
The broker should: (1) gather the underlying invoices, freight quotes, and forwarder statements; (2) present the correct valuation and the corrected duty calculation; (3) explain the cause of the error and the corrective action taken; and (4) coordinate with counsel on whether a prior disclosure is appropriate given the timing of the request.
Ethically, the broker's duty runs to both the client and the government. The broker must be candid with CBP, must not suborn a false statement, and must not let the client's desire to avoid scrutiny override accuracy. If the client insists on a misleading response, the broker should decline and document the refusal. The professional standard is that the broker's license and reputation depend on integrity in exactly this kind of small-dollar, high-temptation situation.