Santa Claus Suits Are Wearing Apparel, Not Duty Free Festive Articles, CIT Says

Rubies Costume Company had imported the suits and challenged CBP’s liquidation of its entries. The Santa suits consist of a red jacket, pants, a hat, a black belt, white gloves, a white wig and beard, shoe covers and a Santa sack packaged together for retail sale as the “Premier Plush 9 Piece Santa Suit.” Made of synthetic fibers, the jackets are hemmed and trimmed with white faux fur and have a full front opening with a zipper. The pants, also made of synthetic fibers, are lined and have pockets and an elasticized waist. The suits are “intended to survive multiple wearings and cleanings” over several Christmas seasons, and provide warmth and protection to the wearer, CIT said.

CBP liquidated the Santa suits in separate subheadings, with the jackets, pants and gloves classified as knit apparel in Chapter 61, the sack in Chapter 42, and only the beard, wig, hat belt and shoe covers classifiable as festive articles in Chapter 95. Rubies argued the entire Santa suits should be classified together as festive articles in one of two subheadings in Chapter 95, both duty free.

Note 1(e) to Chapter 95 excludes “fancy dress, of textiles, of chapter 61 or 62.” In a 2003 decision also involving Rubies, the U.S. Court of Appeals for the Federal Circuit held that “festive articles” are “flimsy, non-durable costumes having utility and used as well for festive occasions, based on functional or structural deficiencies as compared with the standard counterpart articles (e.g., wearing apparel).” In that case, CAFC found the texture and quality of Rubies’ costumes was “flimsy and non-durable,” suggesting they were intended for use on a one-time festive occasion, which is “distinct from ‘wearing apparel’ which the courts have held to be used for decency, comfort, adornment or protection.”

The Federal Circuit in its 2003 decision also approved CBP’s consideration of “such factors as the extent of the styling features such as zippers, inset panels, darts or hoops, and whether the edges of the materials had been left raw or finished” to determine the “texture and quality of the [costumes’] materials.” Subsequently, CBP issued an informed compliance publication on costumes that said “all flimsy, non-durable textile costumes that are not recognized as ordinary articles of apparel are classified under 9505.90.6000, HTSUS[] (flimsy); all textile costumes that exceed the flimsy, non-durable standards or are recognized as ordinary articles of apparel are classified in Chapters 61 or 62, HTSUS[] (well-made).”

Rubies’ Santa Claus suits have lined, hemmed jackets with a full front opening secured by a zipper, in contrast to the costumes at issue in the 2003 Federal Circuit case, which were “simple pull-on type garments with no zippers,” CIT said. “The physical characteristics (and physical inspection) of the jacket indicate a substantial, durable item that will survive multiple wearings and cleanings over several Christmas seasons,” the trade court said. The same goes for the pants, which are lined and have “tightly stitched interior seams.” According to CIT, “the jacket and pants may be intended for use only during the Christmas season. But regularity of wear is not dispositive; items that are worn for specific, perhaps infrequent, purposes may constitute wearing apparel,” it said.

Finding the jackets and pants are “fancy dress” excluded from classification in Chapter 95 by Note 1(e), the court turned to the classification of the Santa suits. It found the jackets are classifiable in subheading 6110.30.30 dutiable at 32%, because they are similar to the sweaters, sweatshirts, waistcoats (vests) and “similar articles” described by that subheading. “The named articles share the essential characteristics of covering the upper body, providing some degree of warmth, and being suitable for wear over a light garment. The Santa Suit jacket shares these characteristics,” CIT said.

CIT also found the pants included with the suit classifiable in subheading 6103.43.15, dutiable at 28.2%; the gloves classifiable in subheading 6116.93.94, dutiable at 18.5%; and the sack classifiable in subheading 4202.92.30, dutiable at 17.6%. The court left alone CBP’s undisputed classification of the beards, wig, hat, belt and shoe covers in subheading 9505.90.60, duty free.

(Rubies Costume Co. v. U.S., Slip Op. 17-147, CIT # 13-00407 dated 10/31/17, Judge Barnett)

(Attorneys: Glenn Ripa of Follick & Bessich for plaintiff Rubies Costume Co.; Peter Mancuso for defendant U.S. government)