Failure to Declare Merchandise
If you enter the United States after acquiring property abroad, either as a resident or non-resident, then you must declare the merchandise to U.S. Customs upon your return to the United States.
Unless an oral declaration is accepted under § 148.12, the declaration required of a person arriving in the United States must be in writing on Customs Form 6059-B.
If you fail to properly disclose the property that was acquired abroad, then an agent with U.S. Customs and Border Protection (CBP) might seize the item for a civil forfeiture proceeding.
Many of these seizures occur at International Airports throughout the United States.
Within sixty (60) days after the seizure, you should receive a notice of seizure that describes the property, when and where it was seized, and its estimated value. The notice of seizure will allege the property was seized for a violation of the following statute:
19 USC 1497(a)(1) – Failure to Declare Merchandise
The purpose of 19 USC 1497 is to ensure that travelers declare valuable merchandise that was acquired abroad.
To get the property back, you should hire an attorney who can help you file a “demand for court action” which is the only way to challenge an illegal seizure. In some limited circumstances, it might be better to file a petition for remission or mitigation.
Alternatively, you can file a petition for remission or mitigation, although you might be required to pay a penalty for the failure to declare the merchandise.
If you do not pay the penalty or respond properly after receiving a notice of seizure, the government takes title to the property in a forfeiture proceeding.
CBP imposes strict deadlines. Act quickly to protect your rights.
Attorney for 19 USC 1497(a)(1) Violations
If your property was seized at the airport after a Customs Agent with CBP accused you of violating 19 USC 1497(a)(1) by failing to declare the merchandise, then retain an experienced attorney to help you during each stage of the process.
Find out why we recommend bypassing the administrative proceedings by filing a claim demanding immediate judicial court action. Filing a claim for court action is the only way to challenge the legality of the seizure.
Talk with us about the pros and cons of filing a petition for remission or mitigation.
These violations occur when the property is brought into the United States without a declaration. Although CBP might allege the violation was an attempt to avoid duty enforcement or because the goods are otherwise inadmissible, the violation might have been a result of negligence or misinformation.
In some cases, CBP made a mistake by seizing the property if no declaration was required under 19 USC 1497.
What is 19 USC 1497(a)(1) – Failure to Declare Merchandise?
As the United States Supreme Court explained in 1972:
To succeed in a forfeiture action under § 1497, …the Government need only prove that the property was brought into the United States without the required declaration; the Government bears no burden with respect to intent….
The § 1497 forfeiture is intended to aid in the enforcement of tariff regulations. It prevents forbidden merchandise from circulating in the United States, and, by its monetary penalty, it provides a reasonable form of liquidated damages for violation of the inspection provisions and serves to reimburse the Government for investigation and enforcement expenses.
One Lot Emerald Cut Stones & One Ring v. United States, 409 U.S. 232, 234-235, 93 S. Ct. 489, 491-492, 34 L. Ed. 2d 438, 441-442 (1972).
Section 497 of the Tariff Act of 1930 (as known as “19 U.S.C. 1497” provides:
§ 1497. Penalties for failure to declare
(a) In general.
(1) Any article which—
(A) is not included in the declaration and entry as made or transmitted; and
(B) is not mentioned before examination of the baggage begins—
(i) in writing by such person, if written declaration and entry was required, or
(ii) orally, if written declaration and entry was not required;
shall be subject to forfeiture and such person shall be liable for a penalty determined under paragraph (2) with respect to such article.
(2) The amount of the penalty imposed under paragraph (1) with respect to any article is equal to—…the value of the article.
Amendment of Declarations Permitted – 19 C.F.R. 148.16
As explained in 19 C.F.R. 148.16, the declaration must be made either:
- any time before baggage examination starts; or
- after examination starts when no undeclared article has been found and there
is no fraudulent intent.
In other words, the violator’s liability under 19 U.S.C. 1497 includes both the forfeiture of undeclared merchandise and a personal penalty equal to the domestic value of the undeclared merchandise.
Minor Violations of 19 USC 1497(a)(1)
If no fraudulent intent is found, the Customs Agent will typically not initiate a penalty
action. Instead, the CBP agent will collect the duties due.
CBP considers the violation to be minor if it occurred through:
- unintentional act;
- involves articles of relatively small value; and
- concerns articles acquired abroad and not declared, which are not prohibited or restricted;
- which would be tax and duty-free if properly declared; or
- are not tax and duty-free but are valued at less than $100.
Serious Violations of 19 USC 1497(a)(1)
For serious violations of 19 USC 1497(a)(a), the Customs agent will typically initiate a penalty action by seizing the merchandise and assessing a personal penalty in the amount of the domestic value of the property.
Serious violations often involve:
- willfulness (sometimes shown by concealment);
- the property has considerable value;
- the property is classified as “commercial merchandise”;
- the property is classified as prohibited or restricted; or
- cases in which, because of the circumstances, merely collecting duty
would not serve law enforcement purposes.
Mitigating and Aggravating Factors for 19 U.S.C. 1497
Customs officers may, within their discretion, consider other factors not delineated in the guidelines as aggravating or mitigating. Although as a general rule, mitigating factors might include:
- a first offense
- no knowledge of the declaration requirements
- communications with the violator are impaired because of the language barrier, mental condition, or physical ailment;
- the violator cooperates with Customs officers after the discovery of the violation by providing additional information which facilitates the conclusion of the case;
- the violator is an inexperienced traveler; and
- the Customs Agent made a contributory error (for example, the violator
demonstrates he was given incorrect advice by a Customs officer).
Aggravating factors might include:
- a second or subsequent violation;
- documentary or other evidence discovered establishes the violator’s intent;
- the facts tend to establish the violator’s intent and lead to the discovery of the violation after the violator has been given an opportunity to properly declare;
- the violator is an experienced traveler;
- the undeclared articles are concealed to evade U.S. law;
- there is behavior, including extreme lack of cooperation, verbal or physical abuse, or attempted escape, which tends to demonstrate a lack of respect for law and authority.
- the property is classified as a “commercial article” that was brought into the United States for commercial purposes;
- evidence of an ongoing scheme to defraud the revenue involving multiple entries without a declaration of articles subject to declaration.
CBP’s Customs Form 6059-B
Form 6059-B is used to declare imported articles to U.S. Customs and Border Protection (CBP) as required by Section 498 of the Tariff Act of 1930, as amended (19 U.S.C. 1498), 31 U.S.C. 5316, and 19 CFR 122.27, 148.12, 148.13, 148.110, 148.111.
The form requires U.S. Residents and Visitors (Non-Residents) to declare all articles that were acquired abroad and brought into the United States. Based on the form, CBP officers will determine duty.
According to a report dated August 10, 2021, by Seth D. Renkema, Branch Chief, Economic Impact Analysis Branch, U.S. Customs and Border Protection, the estimated time per response is 4 minutes.
U.S. residents are normally entitled to a duty-free exemption of $800 on items accompanying them. Visitors (non-residents) are normally entitled to an exemption of $100. Duty is assessed at the current rate on the first $1,000 above the exemption.
Section 148.12 requires verbal declarations from travelers entering the United States, unless an inspecting officer requires a written declaration on CBP Form 6059B. Generally, verbal declarations are required from travelers arriving by land.
Section 148.13 of the CBP regulations describes the use of the CBP Form 6059B when a written declaration is required of a traveler entering the United States by air or sea.
CBP’sMitigation Guidelines for Failure to Declare Merchandise – Visit the CBP’s website to find the “Mitigation Guidelines ICP: Passenger Failure to Declare.” The guidelines explain the general procedures that apply to passengers entering the United States who fail to declare merchandise to Customs, even though they are legally required to do so under 19 U.S.C. 1497, which provides for both forfeiture and penalty liabilities.
Customs Form 6059-B – Visit the CBP website to find a fillable version of Form 6059B Customs Declaration. Complete the form prior to or during your travel. The form must be delivered to CBP as your official Customs Declaration. Each arriving traveler or responsible family member must complete the form.
Sample of CBP Form 6059B – Visit the CBP website to find a collection of forms available in seventeen languages including English, French, Vietnamese, German, Italian, Japanese, Korean, Polish, Portuguese, Russian, Chinese, Hebrew, Spanish, Dutch, Arabic, Farsi, and Punjabi.
This article was last updated on Tuesday, April 12, 2022.