The First Sale rule could offer significant tariff savings for US importers.

However, few companies have adopted this rule in practice, as the legal requirements, documentation headaches, and practical problems involved can be daunting at the beginning.

Firstly, the multi-tier transaction generally must meet the following requirements by CBP:

• Bona Fide Sale: The transaction – which is the first sale – between the manufacturer and the intermediary must be a bona fide sale, complete with a transfer of title.
• Arm’s Length: The Chinese manufacturer and the intermediary must be unrelated or, if related, conduct their transactions at “arm’s length”.
• Clearly Destined for Export: At the time of the “first sale”, the merchandise must be clearly destined for export to the US. For example, the goods are shipped directly from the supplier to the US, or the goods are specially designed or labeled according to the standards of the US market or according to the requirements by the US importer.

Secondly, to prove that the initial “first sale” price is accurate, the manufacturer, the intermediary, and the US buyer have to be prepared to submit the following documents:

• Purchase orders with copies of terms between all parties;
• Confirmations;
• Invoices;
• Written contracts or sales agreements;
• Bills of lading for final products and materials;
• Proof of payment (e.g. letters of credit);
• Production orders and/or manufacturing instructions and other unique specifications of the merchandise to conform to the buyer’s standards;
• Examples of labels, logos, stock numbers, bar codes, and other unique merchandise or carton marks; and
• Examples of country of origin marking on finished goods, hang tags, etc.

Why don’t more companies take advantage of the First Sale rule?

There are various reasons why more companies haven’t employed the First Sale rule, but the main reason is that businesses need to expend a considerable amount of time and resources to ensure a given transaction meets compliance and internal control requirements.

Since the information as mentioned above is often kept by different partners in the supply chain, cooperative relationships and responsibilities need to be developed between the manufacturer, the intermediary, and the importer.

Importers need to persuade other partners to disclose the “first sale” price and ensure only the right people see the sensitive documentation and data, which requires tight control over the process.

In addition, there are risks of errors and non-compliance, and failure to comply with the requirements of the First Sale rule could be construed as a lack of reasonable care and may result in a fine.

What are the experts saying?

A growing number of foreign firms are studying the applicability of the First Sale rule, as they look to offset rising costs stemming from the trade war.

Our CHB  explained, “In the case of a Chinese good sold through a wholesaler in Hong Kong to a US buyer, the good would still be subject to US import tariffs set for China but the value of the Chinese good, on which taxes are calculated, would be lower.”

While this strategy has clear benefits, experts caution that not all businesses qualify to use it.  Our CHB warned, “The First Sale rule is subject to a strict assessment by US Customs, so it is not possible for all firms to use this strategy.”

“Firms that are seriously considering using the First Sale rule should closely study whether they are eligible,” Our CHB said, “or else they risk being overturned by US Customs at a time they are likely paying closer attention to the rule.”

Besides legal eligibility, Our CHB also said that the rule is not suited to all types of businesses. “The ability of companies to leverage the First Sale rule in the context of the US-China trade war will depend on the presence and markup of wholesalers between a Chinese manufacturer and US buyer.”

Our CHB continued, “If wholesalers are not present in the supply chain or the First Sale rule is already being applied, there will be little benefit in exploring this option as a trade war mitigation instrument.”

Although it is not a universal solution for all companies hit by the trade war, it can still be an effective tool for those whose business model and legal status fit. “If wholesalers are present and the First Sale rule is not being applied, larger wholesaler markups will provide greater room for maneuverability,” .

With businesses on both sides of the Pacific feeling the impact of eight months of US-China tariffs, affected businesses are eager to explore any solution to minimize their costs.

In this regard, the First Sale rule could be an effective option for businesses to lower costs without sacrificing operational inputs or significantly altering pre-existing supply chains.