Full opinion text
OPINION MUSGRAYE, Judge. The government brought this action against Hitachi America, Ltd. (“Hitachi America”) and Hitachi, Ltd. (“Hitachi Japan”) in a bid to recover penalties and lost duties under 19 U.S.C. § 1592. The government alleged in the alternative that Hitachi America and Hitachi Japan are liable for violating customs laws by committing fraud, gross negligence, or negligence in connection with imported merchandise, and that Hitachi Japan is also liable as an aider or abettor. The Court entertains jurisdiction under 28 U.S.C. § 1582. The trial was conducted de novo. 19 U.S.C. § 1592(e)(1). For reasons which follow, the Court holds that Hitachi America is liable for negligent violations of customs laws and that Hitachi Japan is liable for aiding or abetting Hitachi America in its tortious course of conduct. Pursuant to 19 U.S.C. § 1592, defendants are jointly and severally liable for the $1,545,970 penalty assessed by the Court, and Hitachi America must remit an additional $96,469, the remainder of lost duties it has not yet restored to the government. BACKGROUND This controversy concerns the importation of unfinished subway car components and parts delivered to the Metropolitan Atlanta Rapid Transit Authority (MARTA) during the 1980’s. The MARTA project initially comprised the purchase of 30 subway cars (referred to as the “base buy”) for use in the Atlanta, Georgia subway system. The project was subsequently extended by MARTA’s exercise of 4 options for a total of 90 additional subway cars. MARTA’s first request for bids did not contain the price adjustments at issue in this case. After MARTA rejected all the bidders’ prices as too high, MARTA then revised the terms of the contract, which was entitled “Contract CQ-311”, and incorporated two price adjustment clauses: an Economic Price Adjustment (“EPA”) clause, by which MARTA assumed the risk of inflation on labor and material, and a Monetary Value Adjustment (“MVA”) clause, by which MARTA guaranteed a fixed amount of yen for foreign-proeured materials. Pursuant to the MVA clause, MARTA assumed the risk of a depreciation of the dollar but would also enjoy the benefit of any appreciation of the dollar. Hitachi Japan negotiated the contract with MARTA. A joint venture consisting of Hitachi America and C. Itoh America (“CIA”) was awarded this revised contract on September 27, 1982. Contract CQ-311, which explicitly contained the EPA and MVA clauses, was publicly available. MARTA itself issued a press release indicating that the Contract included “$3.7 million for projected currency exchange rate and inflation.” The subway cars consisted mainly of domestic content, some of which was exported to Japan and incorporated into the vehicles at Hitachi Japan’s Kasado Works factory. The partially completed subway cars and components were then sold to C. Itoh Ltd. (“CIJ”), a Japanese corporation. CIJ is one of the world’s largest trading companies, specializing in the purchase and sale of various merchandise throughout the world. Transactions between CIJ and Hitachi Japan were in yen pursuant to separate purchase orders. CIJ then sold the merchandise to the Hitachi Ameriea-CIA joint venture. Hitachi America was the importer of record, and imported the partially completed subway cars principally through the port of Savannah, Georgia. Hitachi America issued purchase orders to CIJ in dollars which referenced the EPA clause. The cars were then sent to MARTA’s Avondale Yards in Atlanta for final assembly by U.S. subcontractors. CIA was the banker for the MARTA transaction. CIA maintained an account for Hitachi America from which customs duties were paid, and CIA paid CIJ in yen. CIA also invoiced and received payments from MARTA. CIA was responsible for paying domestic and foreign vendors, including CIJ, for the merchandise incorporated into the subway ears. Pursuant to CQ-311, MARTA paid the joint venture of Hitachi America and CIA according to various progress points, called “milestones”, which were based on the completion and delivery of the subway ears. The 250 milestone payments by MARTA were not and could not be directly correlated to the forty-one entries at issue in this case. The amount of EPA paid by MARTA was derived quarterly following the publication of various indices. The amount of EPA paid by MARTA could not be determined at the time of entry. The amount of MVA paid by MARTA was derived pursuant to a formula based upon the timing of various milestone payments. The amount of MVA paid by MARTA similarly could not be determined at the time of entry or correlated to specific entries of merchandise. Thus, at the time of each entry, neither the importer nor the U.S. Customs Service (“Customs”) could determine the amount of future additional duties owed on any EPA and MVA payments. A cost engineer at Hitachi Japan’s Kasado Works factory computed detailed budgets for various costs attributable to the MARTA project, including import duties. The amount of $607,050 was allocated for Hitachi America’s payment of import duties for the base buy of the first 30 cars. This duty budget included an estimate for duties on both EPA and MVA payments. The formula used to estimate EPA and MVA duty payments in the original budget was also utilized to calculate subsequent duty budgets for the 1st, 2nd, 3rd and 4th options, and the formula remained unchanged throughout the project. The total duty budget, including payments for EPA and MVA, was approximately $2,000,000, and was allegedly held by CIA. At the end of the project in 1988, Hitachi America had approximately $298,000 left over in this $2,000,000 duty budget after the payment of approximately $1,700,000 for import duties incurred on the base price of the imported merchandise. As the shipments began in 1984 and 1985, defendants discussed how to allocate EPA money that would eventually be received from MARTA. Hitachi America successfully negotiated to receive approximately 2.7% of the domestic EPA for additional duty on EPA payments. The defendants also agreed that if there were a budgetary shortfall in duties owed on the MARTA contract, Hitachi Japan would be responsible for the shortfall. At the time of the first shipment of unfinished subway cars in 1984, Hitachi America and Hitachi Japan understood that EPA payments were dutiable. However, neither Hitachi America nor Hitachi Japan had prior experience with MVA adjustments. Whether such payments were subject to duty was apparently unclear to defendants at the time of the first shipment. The defendants observed that at the time of shipment, EPA and MVA amounts were not yet fixed, and thus the amounts of EPA and MVA payments could not be known at the time of shipment. Based on this fact and on their alleged past practice in previous long-term projects subject to escalation, the defendants decided that only the base price needed to be reported on the invoice submitted to Customs, and the escalation payments could be reported to Customs and tendered at the end of the project. Many of the witnesses from Hitachi America and Hitachi Japan attested to their belief that the amount of duties could be finalized and paid after the ultimate liquidation at the end of the project. Some of the witnesses also testified that they expected Customs to request information from Hitachi America throughout the course of the project regarding the amount of escalation received from MARTA. Customs never issue any such requests to Hitachi America. In any event, the shipping invoice declaring the base price in dollars without reference to escalation clauses was presented to Customs by Hitachi America and was prepared with assistance from Hitachi Japan and CIJ. Hitachi America referenced “CQ-311” ninety-two times on.entry documents over the course of the project. On April 19, 1984, the Hitachi America official in charge of the MARTA project at that time accompanied by an official from Hitachi Japan visited Customs’ office in Savannah, Georgia in order to discuss the MARTA importations. At trial, neither of these gentlemen could recall whether they discussed the EPA and MVA clauses or whether they provided a copy of the MARTA contract and the Hitachi Ameriea-CIJ purchase order to the Import Specialist. It is routine for National Import Specialists to request copies of contracts on long-term projects and to inquire about any escalation provisions contained therein. Hitachi America’s customs brokers also held meetings with Customs in Savannah to discuss invoicing issues. It is unknown whether the customs brokers discussed invoicing or reporting requirements for EPA or MVA with the Savannah Import Specialist. After these meetings with Customs and some minor internal investigations, Hitachi America proceeded on the assumption that escalation clauses need not be listed on the invoice submitted to Customs and that any additional duties arising from escalation payments could be reported and paid at the end of the project. Although some of the Savannah Import Specialists involved in the pre-importation meetings were apparently available to testify, the government failed to produce any witnesses from the Savannah Customs office or the office of the National Import Specialist to testify as to whether there were discussions regarding the EPA and MVA provisions expressly referenced in the CQ-311 contract. The first importation of unfinished subway cars entered Savannah on June 16, 1984. The last of the forty-one entries at issue in this case was entered on June 29,1988. In 1986, due to the Plaza Accords which uncoupled the world’s major currencies, the dollar depreciated precipitously against the yen. The depreciation of the dollar resulted in substantial MVA payments by MARTA to the joint venture. The hapless MARTA which apparently failed to hedge in the futures market against potential currency fluctuations, became dissatisfied with this increased expense and refused to pay on MVA invoices for some time. This led to the filing of a lawsuit by the joint venture against MARTA which was eventually settled. During the middle of the project, Hitachi America began to analyze duty payments on the MARTA contract both to discover whether customs laws had been complied with and to ensure that the correct amount of duty would be tendered to Customs upon the completion of the project. Mthough EPA was understood to be dutiable, there were considerable questions regarding the dutiability of MVA. Some questioned whether MVA was dutiable based on the fact that yen was being received by the Japanese parties: MVA had no impact on the amount of yen received by CIJ or Hitachi Japan. The internal investigations produced no changes in how Hitachi America responded to its obligations under customs laws. In late 1987, as the MARTA project began to wind down, Hitachi America began considering how to calculate escalation duties and' to pay Customs. By January 1988, defendants realized that Hitachi America might have to pay additional duties on MVA as well as on EPA. In April 1988, after considerable negotiations between Hitachi America and Hitachi Japan concerning which company’s budget would be used for the additional duty expenses, Hitachi Japan agreed to allocate $600,000 to Hitachi America to cover the expected amount of additional duties. Later in 1988, Hitachi Japan indicated that it was eager to resolve the duty matter as quickly as possible. Before paying any additional duties whatsoever, Hitachi America sought to confirm whether MVA was in fact dutiable. In the spring of 1988, Hitachi America finally retained outside counsel to determine whether MVA was dutiable. After determining that MVA was “potentially reportable”, outside counsel advised Hitachi America not to tender EPA and MVA duties until the exact amount of duty on MVA payments had been calculated. This calculation was delayed because CIA refused to provide information requested by outside counsel showing thé amounts CIA had paid to CIJ for the imported merchandise. Ms. Creeco was the lay employee at Hitachi America who designed customs compliance programs at Hitachi America in the mid to late 1980’s. Originally hired for clerical work in February 1984, she became a rising star in the company and received the highest awards for her performance. She worked with her future husband, Mr. Long, to design customs compliance programs and in 1986 she became the manager of the newly created Hitachi America Import/Export Department; in that capacity, she developed customs compliance programs and communicated with Customs regarding duty issues. Despite her responsibilities, Ms. Crecco was not effective in resolving the EPA and MVA duty issues before she left Hitachi America in July 1988. Instead, Ms. Crecco, who had contemplated becoming a Customs informant and collecting a moiety award for her services as early as 1986, became a government informant in March 1988. Ms. Creeco had been advising Hitachi America not to contact Customs in 1987 and 1988 in connection with the EPA and MVA duty issues, and in the summer of 1988, she delayed sending documents to outside counsel which were required to calculate those duties. At the same time, Ms. Crecco passed many internal Hitachi America documents to Customs agents investigating the MARTA project, including legally privileged information. After her departure from Hitachi America, Ms. Crecco arranged a lunch date in November 1988 with Ms. Hansen (then Ms. Wilson), a Hitachi America employee still involved in the MARTA duty issues, in order to surreptitiously record admissions. Ms. Wilson related that outside counsel was in the process of finalizing his analysis and that “[Hitachi Japan] is ready to pay.” In June 1988, outside counsel requested records of payments to Japan for the imported merchandise. Hitachi America tried on several occasions and by various means to obtain the payment information kept by CIA CIA failed to provide that information to Hitachi America and allegedly suggested that it “let sleeping babies lie.” Through Ms. Creeco’s services, Customs became aware that Hitachi America was planning to make a prior disclosure, and Customs exercised a search and seizure warrant on Hitachi America’s headquarters on April 4,1989. A grand jury was convened to investigate criminal fraud but failed to indict. In 1991, Hitachi America paid $851,385 in response to the Pre-Penalty Notice issued by Customs. The complexity of the EPA and MVA duty issues is substantial. Before and during this trial there was significant disagreement within the government over how to appraise the entered merchandise and determine the amount of lost duties. In December 1990, the government performed an audit which determined that the joint venture received an aggregate of $20,448,989 in unreported escalation payments from MARTA, roughly $2,000,000 of which was due to EPA and the remainder to MVA. This initial audit determined that the dollar denominated lost duties on those unreported payments equaled $851,-455. The government performed a supplementary audit in 1994 to include contract modifications left out of the initial audit, and the supplementary audit determined that aggregate escalation payments from MARTA equaled $22,766,284, resulting in an additional $96,399 in lost duties. Combining the $851,455 from the initial audit and the $96,-399 from the supplementary audit equals $947,854 in lost duties. Based on this dollar theory of valuation, the total value of the entries was $63,054,536, but by not reporting MARTA’s escalation payments, Hitachi America reported an aggregate entered value of only $40,288,252. For years, the government proceeded on the assumption that MARTA’s dollar payments to the joint venture established the correct measure of lost duties. On the eve of trial, the government undertook an alternative calculation it presented to the Court based on the assumption that the relevant transaction might be represented by payments in yen from CIA to Cl J, resulting in a loss of revenue of $750,536. This figure was revised during trial on June 3, 1996 to equal $632,102. Finally, the government’s appraisal expert testified on June 6, 1996 that over the previous weekend he underwent a last-minute “crystallization” of thoughts which convinced him that the government’s original calculations based on MARTA’s dollar payments to the joint venture should be utilized to calculate the amount of lost duties, and that $947,854 represented the correct measure of lost duties. After 7 years of investigation and prosecution, substantial intra-government disagreement remains over the core issues. On June 29, 1993, the government filed suit; this was one day before the defendants’ waivers to a statute of limitations defense expired. Nearly seven weeks of depositions were taken beginning in the fall of 1995, and several of those weeks were spent deposing witnesses in Japan. The trial, which began on May 7, 1996 after a several month extension granted upon the government’s last minute request, spanned nearly six full weeks. The government identified sixty-eight binders of pre-trial exhibits and called eighteen witnesses. This litany of witnesses did not include any Customs employees involved in the pre-importation meetings or any other meetings with Customs. The defendants moved to dismiss the case after the close of the government’s case in chief and the Court granted the motion on the counts alleging fraud and gross negligence. The defendants elected not to present a case. With this skeletal background in place, the Court turns to its discussion of the issues. The factual determinations appearing in the discussion constitute additional findings of fact by the Court but have been deferred in order to achieve an orderly presentation of the ultimate issues. DISCUSSION The government alleged in the alternative that Hitachi America and Hitachi Japan are hable for violating customs laws by committing fraud, gross negligence, or negligence, and that Hitachi Japan is also hable as an aider or abettor. The government’s general argument is that a violation of the customs laws is a per se event, and is therefore punishable. Importers are required to disclose and report to Customs ah information relevant to determining the dutiable value of merchandise. Escalation clauses such as EPA and MVA are material to determining the dutiable value of imported merchandise. Importers are therefore required (1) to disclose escalation clauses upon entry documents, and (2) to report escalation payments when they are received unless liquidation has been suspended or estimated duties have been deposited upon entry. When defendants entered the merchandise without specifically listing the escalation clauses on entry documents, they knew or should have known that they submitted materially deficient information relevant to the determination of dutiable value, even though none of the entry documents related to any particular payment, nor could they have done so. However, because they did not deposit estimated duties or arrange to suspend liquidation, they violated customs laws by not reporting escalation payments at the time they were received. At the close of the government’s case in chief, defendants moved for judgment or dismissal pursuant to Court of International Trade (“CIT”) Rules 41(c) and 52(e). The Court granted the motion on the fraud and gross negligence counts but denied the motion with respect to the counts alleging negligence and aiding or abetting. The Court first addresses defendants’ negligence and then articulates its reasons for granting defendants’ motion under CIT Rules 41(c) and 52(c) on the fraud and gross negligence counts. I. Hitachi America Committed Negligence The statutes allegedly violated include 19 U.S.C. § 1484 (“ § 1484”), 19 U.S.C. § 1485 (“ § 1485”), and 19 U.S.C. § 1592 (“ § 1592”). Section 1484 requires that contract terms affecting the assessment of duties be disclosed on entry documents. Section 1485 requires that importers immediately notify Customs of any transactions subsequent to entry that impact the correct price of the merchandise, and § 1592 creates liability for negligently submitting materially deficient pricing statements contrary to the directives of § 1484 or § 1485. Section 1592 sets forth the three bases of liability for customs penalty actions: (a) Prohibition (1) General Rule Without regard to whether the United States is or may be deprived of all or a portion of any lawful duty thereby, no person by fraud, gross negligence, or negligence— (A) may enter, introduce, or attempt to enter or introduce any merchandise into the commerce of the United States by means of— (i) any document or electronically transmitted data or information, written or oral statement, or act which is material and false, or (ii) any omission which is material, or (B) may aid or abet any other person to violate subparagraph (A). For reasons which follow the Court holds that Hitachi America is liable for negligence under § 1592(a)(1)(A). The penalty statute removes the breach element from the government’s prima facie negligence case. Under the common law, the plaintiffs prima facie negligence case consists of demonstrating sufficient evidence of duty, breach, causation, and damages. In contrast, for simple negligence claims under the penalty statute, “[T]he United States shall have the burden of proof to establish the act or omission constituting the violation, and the alleged violator shall have the burden of proof that the act or omission did not occur as a result of negligence.” § 1592(e)(4). By shifting the burden to the defendant to show lack of negligence, § 1592(e)(4) derogates from the common law. This burden-shifting provision applies to a negligence claim as well as to a claim for aiding or abetting because § 1592(e) applies to any proceeding commenced “pursuant to section 1604 of [Title 19]”, which includes an aiding or abetting violation under § 1592(a)(1)(A). The burden-shifting provision also applies to a claim for aiding or abetting because, as explained infra, the basis of liability for aiding or abetting a negligent act is itself negligence. In order to assess defendants’ liability for negligent acts, the Court adopts the definition of negligence appearing in Customs’ regulation: A violation is determined to be negligent if it results from an act or acts (of commission or omission) done through either the failure to exercise the degree of reasonable care and confidence expected from the person in the same circumstances in ascertaining the facts or drawing inferences therefrom, in ascertaining the offender’s obligations under the statute, or in cornmunicating information so that it may be understood by the recipient. As a general rule, a violation is determined to be negligent if it results from the offender’s failure to exercise reasonable care and competence to ensure that a statement made is correct. Customs Service Revised Penalty Guidelines, 19 C.F.R. pt. 171 App. B(B)(1) (emphasis added). See also United States v. Rockwell Int’l Corp., 10 CIT 38, 43 n. 5, 628 F.Supp. 206, 211 n. 5 (1986) (quoting Customs’ definition of negligence as authority for determining standard of care required under § 1592). Since § 1592 allocates the burden to show an absence of negligence (more technically an absence of breach) to defendants, the defendants bore the burden to show that they exercised reasonable care under the circumstances. The government contends that had defendants exercised reasonable care in ascertaining their statutory obligations, they would have known of their obligations both to disclose escalation clauses on entry documents and to report future escalation payments at once. Fundamentally, defendants should have known of their disclosure and reporting requirements because they should have known that potential escalation payments are material to assessing the dutiable valué of merchandise. With regard to the alleged disclosure violation, § 1484 provides in pertinent part: [An importer of record] shall file (at the time required under paragraph (2)(B) of this section) with the appropriate customs officer such other documentation as is necessary to enable such officer to assess properly the duties on the merchandise (2)(B) The documentation required under paragraph (1)(B) of this subsection with respect to any imported merchandise shall be filed with the appropriate customs officer when entry of the merchandise is made____ § 1484(a) (emphasis added). In order for a Customs official to assess properly the duties on merchandise, the official must be in possession of all information relevant to determining the dutiable value of the merchandise pursuant to the valuation statute, 19 U.S.C. § 1401a (“ § 1401a”). Under § 1401a, the preferred method for calculating dutiable value involves determining the “price paid or payable” for the merchandise. The government argues that since the price paid or payable included potential EPA and MVA escalation payments, then at the time of entry, Customs was deprived of information relevant to the proper assessment of duties and so defendants violated § 1484. The duty to report escalation payments as they were received allegedly arose under § 1485, which provides in pertinent part: Every importer of record making an entry under the provisions of section 1484 of this title shall make and file therewith ... a declaration under oath, stating— (2) That the prices set forth in the invoice are true, in the case of merchandise purchased or agreed to be purchased ...; (4) That he will produce at once to the appropriate customs officer any invoice, paper, letter, document, or information received showing that any such prices or statements are not true or correct. § 1485(a) (emphasis added). The plain language of § 1485 obligates importers to report immediately to Customs any new information showing that the prices declared at entry were incorrect. The government argues that since escalation payments are part of the price paid or payable for the subway cars, then under the language of § 1485, defendants were obligated to report any escalation payments to Customs at once. Since they did not do so, and since they did not avail themselves of the statutory mechanisms allowing for the deferral of the reporting obligation, they violated § 1485. The Court agrees with Hitachi Japan that because § 1484 and § 1485 by their terms apply only to importers of record, Hitachi Japan may not be held directly liable for a violation of these statutes: Hitachi Japan’s liability may arise only via the aiding or abetting provision of § 1592. Although the government argued that Hitachi America was effectively controlled by Hitachi Japan, the government did not argue or demonstrate that the Court should pierce the corporate veil and treat Hitachi Japan as if it were in the shoes of Hitachi America; on the contrary, the government chose to sue defendants separately and treated them throughout as separate entities. A. Hitachi America Did Not Fully Comply With Customs Laws When It Declared Incorrect Dollar Amounts On The Entry Documents The starting point for the overall analysis of negligence with respect to MVA is deciding whether the payment from the joint venture to CIJ was a dollar or a yen transaction. The reason for this is that the terms of the transaction determine the currency terms which must be disclosed on the entry documents. In particular, § 1481(a)(5) requires the importer to list on the invoice “[t]he purchase price of each item in the currency of the purchase ...” Id. (emphasis added). The government asserts that the transaction between the joint venture and CIJ was in dollars. Since the invoice between Hitachi America and CIJ was denominated in dollars, was submitted to Customs, and served as the basis upon which Customs appraised the merchandise, the government infers that the contracting parties treated it as a dollar transaction and the Court should do likewise. Under this theory of the case, Hitachi America properly listed dollar denominations on the entry documents but was negligent for not listing the MVA clause on the invoice and for not reporting MAEtTA’s MVA payments upon receipt. Nevertheless, the government recognized that reasonable minds could differ on this issue and ensured that appraisal calculations founded on the yen transaction view were performed by its expert auditor and entered into evidence. Defendants maintain that the transaction between the joint venture and CIJ was in yen. As defendants explain, and [Hitachi America]) established that CIA, acting as the accountant on behalf of [Hitachi America] as part of the Joint Venture paid CIJ ... in Japanese yen. In line with the exchange rate provision in the purchase orders between [Hitachi America] and CIJ, CIA had converted the dollar amounts shown on the purchase orders and CIJ invoices into yen using a constant exchange rate of 269.7 yen to the dollar. CIA then remitted the fixed payment in yen to CIJ, on behalf of [Hitachi America], regardless of the MVA amount CIA expected subsequently to recover from MARTA. Although CIA did later remit (also in yen) the additional EPA inflation escalation payments ... to CIJ, it did not remit any additional MVA currency escalation payments to CIJ, since this transaction was already in yen. All of the parties agree now that the records taken by the Government from CIA (not previously available to Hitachi [Japan] Hitachi Japan’s Post-Trial Br. at 38-34 (arguments “fully supported] and adoptfed]” by Hitachi America (Hitachi America’s Post-Trial Mem. at 21)); See also Hitachi America’s Post-Trial Mem. at 18 (“[Hitachi America] received no separate invoices for MVA payments and the MVA clause did not change the value of the payments made to [Hitachi Japan] in Japan.”) Since CIJ invoiced Hitachi America in dollars but was paid by CIA in yen, Customs’ would normally view this arrangement as constituting a yen transaction: Sellers and buyers occasionally specify a pegged rate of exchange which will apply to the sale of the goods. The pegged rate of exchange should be used only in determining which currency is the true currency of the transaction. For example, if merchandise from Japan is invoiced in yen, but payable in U.S. dollars at the rate of $1 for 250 yen, then the transaction is in dollars. Conversely, if the merchandise from Japan is invoiced in dollars, but payable in yen at the rate of 250 yen for $1, then the transaction is in yen. Fundamentals of Customs Tariff and Trade Operations 7-S (1983) (emphasis added). On June 6, 1996, the government put on Mr. Wholey, a surprise witness allowed by the Court, as an expert in Customs appraisement matters. On direct examination, Mr. Wholey testified that in his view, the transaction between the joint venture and CIJ was a dollar transaction. Mr. Wholey explained that although he stated during his May 23, 1996 deposition that the transaction was in yen, over the weekend before his testimony at trial his view underwent a crystalline transformation and he was now thoroughly convinced that the transaction was in dollars and that the appraisal of the merchandise should be based on the dollar amounts MARTA paid to the joint venture. On cross examination, Mr. Wholey admitted that prior to his deposition he had expressed his opinion to the Justice Department that the transaction was in yen. Mr. Wholey was asked about a file provided to him by the Government to help him prepare for his expert testimony. Included in the file was a proposed draft of a brief on this case authored by a senior Customs attorney and an associated e-mail. Mr. Wholey stated that those materials made him aware that senior Customs attorneys as well as the chief of the Customs Penalties Branch believed that the transaction was in yen. He also testified that he agreed with Customs’ view that since CIA did not send additional payments to CIJ for, MVA receipts, MARTA’s MVA payments to the joint venture would have been irrelevant for duty purposes if Hitachi America had properly listed on the invoice the fixed amount of yen that CIA sent to CIJ. On redirect examination, Mr. Wholey testified that he suddenly fell ill during his May 23, 1996 deposition and that he was thereby distracted, weakened, and tired at the time he expressed his opinion that the transaction was in yen. He also stated that when he originally received the file, he read the e-mail but not the draft brief prepared by Customs, and that none of the materials attached to the e-mail had influenced his testimony at trial. The Court finds that the transaction was in yen and that Hitachi America negligently listed an incorrect dollar denomination as the currency of purchase on the entry documents in violation of § 1481(a)(5). The currency of purchase is a material element because it is explicitly required by statute and is an essential element to calculating dutiable value. The Court accords great weight to Customs’ published fundamentals on the method for determining the currency of purchase. Although the Court sympathizes with Mr. Wholey’s sudden illness at deposition, it must dismiss his last minute apostatic opinion as caprice. From the time the government solicited his expert opinion until the weekend before trial, Mr. Wholey was convinced that the transaction was in yen. That was the correct view according to Customs’ routine interpretation. It also comports with common sense: CIA paid CIJ in yen. Moreover, as discussed infra, even if the valuation of the merchandise were ultimately based on a dollar transaction by virtue of the provisions of the valuation statute, that does not impinge the command of § 1481(a)(5) requiring the importer to list the purchase price in the actual currency of purchase. In their zeal to argue for the lower amount of lost duty which a yen transaction theory produces, defendants are magnanimously forthcoming with the asserted legal implications. If the transaction between the joint venture and CIJ was in yen, the government would have a claim for the mistaken treatment of the transactions on the entry documents as dollar-based, rather than yen-based transactions. [This] claim has not previously been asserted by the Government as a violation, would not properly be before this Court, and in any event, is answered by the undisputed evidence that Hitachi [Japan] and [Hitachi America] legitimately believed the transaction was dollar-based and did their best to obtain the correct information and documentation from CIA. Hitachi Japan’s Posh-Trial Br. at 35-36 n. 26 (arguments “fully supported] and adopt[ed]” by Hitachi America (Hitachi America’s Post-Trial Mem. at 21)). On the contrary. The government asserted in its opening argument that the finding of a yen transaction would render the dollar denominations on the invoices false statements. Second, the trial was conducted de novo and the Court is unfettered in its discretion to identify violations of law. Third, even if it were true that Hitachi America did not know that CIA was remitting yen, the fact that Hitachi America might have been forced into a marriage of convenience with CIA does not permit it to rely conveniently on internuptial shenanigans as proof of reasonable care. If a domestic joint venture bifurcates its banking and customs operations, the importer of record will be hard pressed to explain its failure to obtain basic information from its partner essential to compliance with customs laws. Furthermore, the Court wonders whether Hitachi America was ignorant that CIA was remitting yen when the evidence demonstrates that the two communicated with each other during the course of the importations. It does not follow from the fact that Hitachi America was unable to obtain payment records from CIA in 1988 that Hitachi America was not aware that CIA was remitting yen throughout the course of the project; to wit, a Hitachi America internal memorandum from February 1988 stating, “Some people feel the increase in contract amount and the way money is transferred back to Japan, makes MVA dutiable.” (emphasis added). In a similar vein, the Court dismisses defendants’ argument that CIJ controlled the preparation of the faulty commercial invoices as a futile blame shifting maneuver. Hitachi America is responsible for the contents of the invoice under the statute and absent proof of legal coercion, which was neither alleged nor proved, it may not dodge its obligations as an importer of record by pleading impotence. The government tried its case under the dollar theory. Defendants chose not to put on a case and in electing that strategy, they were confined in cross examination to refuting the dollar theory. There is scant evidence that Hitachi America was in fact ignorant of the fact that yen was being sent abroad or that it attempted to so discover. A bald assertion that Hitachi America “legitimately believed” dollars were being sent abroad hardly suffices. Its obligation was to declare the true currency of purchase. It did not declare the true currency of purchase and failed to show that it exercised reasonable care in ascertaining the relevant facts about the transaction. Hitachi America violated § 1481(a)(5) by stating an incorrect currency of purchase and was negligent in doing so. Notwithstanding this, the Justice Department was never able to agree with the correct view of the Customs Service that the transaction was in yen. It follows that if, over the years, Treasury (Customs) and Justice could not agree on the actual currency of the transaction that confusion on the part of the importer and its partners, while not entirely excusable, is at least understandable. It follows from this discussion that Hitachi America negligently violated its obligations under § 1484 and § 1485 to declare accurately the price of the merchandise. Hitachi America understated the price of the merchandise because the dollar amounts it listed on the entry documents understated the value of the yen sent abroad — even though, as noted above, the entry documents did not and could not reflect the actual price of each shipment. Ascertaining the amount of currency sent abroad is just as basic to complying with customs laws as is ascertaining the type of currency sent abroad. Hitachi America failed to show that it exercised reasonable care to discover the amount of currency that was sent abroad for the same reasons that it failed to show that it exercised reasonable care to discover the type of currency that was sent abroad. The Court holds that Hitachi America negligently declared prices which, cumulatively understated the value of what was paid to the foreign seller. The Court agrees with the government’s client, Customs, that MARTA’s MVA payments were irrelevant for duty purposes and therefore Hitachi America may not be held hable for failing to disclose the MVA clause on entry documents or for failing to report MVA receipts at once. If the transaction had been in dollars, then, akin to the Court’s holding under its analysis of EPA, Hitachi America would have negligently failed to report the MVA payments as they were received. B. Hitachi America May Not Be Penalized For Failing To Disclose The EPA Clause On Entry Documents Defendants argue that as a matter of logic and law, omitting references to escalation clauses on entry documents could not constitute a materially deficient statement actionable under § 1592. Potential escalation payments are not material because they are uncertain at the time of entry; in fact, it is possible that- no escalation payments might be disbursed whatsoever due to an equilibrium of escalation indices; over time, an importer might even receive a lesser flow of currency from' the purchaser if escalation operates to its translational detriment. Since the amount of escalation cannot be established at entry, escalation clauses cannot be material price terms as a matter of law. This argument is not entirely persuasive. Contingent payments may be material to the value of merchandise for the same reason that they are material to valuing a going concern. The government argues that escalation provisions are material to the price of merchandise at entry as a matter of law and therefore must be disclosed in the entry documents. The Court agrees. Several cases have held that the issue of materiality is a matter for the Court. “ ‘[T]he measurement of the materiality of the false statement is its potential impact upon Customs’ determination of the correct duty for the merchandise.’ United States v. Rockwell International Corp., 10 CIT 38, 628 F.Supp. 206, 210 (1986) (DiCarlo, J.). That measurement of materiality would also apply to a false statement by omission.” United States v. Menard, 16 CIT 410, 417, 795 F.Supp. 1182, 1188 (1992) (emphasis added). All parties agree that EPA payments affect dutiable value, so Hitachi America omitted referencing an item that had a potential impact on the correct duty and thus perpetrated a material omission. Nevertheless, the Court may not penalize defendants on this basis because the duty to report escalation clauses on entry documents was rendered turbid by a Customs ruling published in the Customs Bulletin. The government presented one Customs ruling published in the Customs Bulletin which concludes that escalation is part of the price of the merchandise at entry. In C.S.D. 82-121 (March 15, 1982), 16 Cust. Bull. 913 (1982), the importer requested a ruling on whether escalation receipts were considered part of the price of merchandise valued under the transaction value provision of the valuation statute and if so, how should the importer account for potential escalation receipts in calculating the correct amount of estimated duties to deposit upon entry. Customs ruled: Concerning the escalation provisions in the contract, it is our opinion that where, as here, the formula for determining the escalation amounts was arrived at prior to the importation of the merchandise, the escalation payments attributable to the dutiable portions of the contract price should be taken into account in calculating the price paid or payable. This is true even though the final and precise determination of the escalation amounts will not be known until some time after the shipment has arrived. Of course, as you point out, 19 U.S.C. 1504(a) provides for a one-year limitation on the time within which to withhold liquidation on an entry, unless an extension of the time limit is granted pursuant to section 1504(b)____ In regard to the amount to be deposited as estimated duties, we recognize that the final amount of the escalation payments will not be known at the time of entry. Therefore, we have no objection to a deposit of estimated duties based on the contract purchase price ... Id. at 914. (emphasis added). The ruling states that potential escalation payments are to be considered part of the purchase price but that estimated duties equal to the contract price may be deposited upon entry in anticipation of future corrections. The government also located several rulings not published in the Customs Bulletin which concluded unsurprisingly that escalation payments are part of the price of the merchandise. [¶] 543917 EK (Aug. 27, 1987); [¶] 543089 CW (June 20, 1984); [¶] 543252 MK (Mar. 30, 1984); [¶] 543285 MK (Mar. 20, 1984); [¶] 542975 (Mar. 9, 1983). If potential escalation payments are part of the price of the imported merchandise, then § 1484 would seem to require that escalation clauses be disclosed on the entry documents; the required specificity of such disclosure is not articulated. Defendants do not deny the dutiability of EPA, but argue that there is no requirement to recite specifically escalation clauses on the entry documents. In support of their argument, they point to a Customs decision published prior to the first MARTA entry and subsequent to C.S.D. 82-121. In C.S.D. 84-78 (March 30,1984), 18 Oust. Bull. 1030 (1984), which involved the duty consequences of decreased payments to the seller by virtue of refunds pursuant to currency fluctuation adjustments, Customs stated that “if the manufacturer and importer have agreed upon a formula under which to arrive at the price actually paid or payable, the importer should advise the appropriate Customs officer, preferably at the time of entry.” Id. at 1032 (emphasis added). At trial, the government dismissed this ruling as mere “dicta” and attempted to distinguish it on the grounds that it involved a decrease in the price deemed paid rather than an increase. This explanation misses the point. In its discretionary function Customs fills out the law, most authoritatively by rulings published in the Customs Bulletin. In a strict sense all Customs rulings are dicta because they are not binding on the Court. Regardless of whether Hitachi America actually relied on this ruling and in the absence of subsequent rulings expressly requiring disclosure of escalation clauses upon entry, C.S.D. 84-78 clouded the existence and exigency of the requirement, and a nebulous duty is a legal oxymoron. “[W]here the agency itself struggles to provide a definitive reading of the regulatory requirements, a regulated party is not ‘on notice’ of the agency’s ultimate interpretation of the regulation, and may not be punished.” General Electric Co. v. EPA 53 F.3d 1324, 1333 (D.C.Cir. 1995). General Electric Co. v. EPA held that the agency was free to enforce its interpretation of the statute, but that imposition of a penalty was precluded by the Due Process Clause. Id. at 1334. See also Lloyd C. Lockrem, Inc. v. U.S., 609 F.2d 940, 944 (9th Cir.1979) (“We reiterate that [one] should not be held to standards, the application of which cannot be agreed upon by those charged with their enforcement”). Since the conflicting rulings published in the Customs Bulletin did not put importers on notice of what conduct was required, to penalize Hitachi America for its alleged violation would run afoul of the Due Process Clause of the U.S. Constitution. “Engrained in our concept of due process is the requirement of notice____ Notice is required before property interests are disturbed, before assessments are made, before penalties are assessed. Notice is required in a myriad of situations where a penalty or forfeiture might be suffered for mere failure to act.” Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 243, 2 L.Ed.2d 228 (1957). Had the government called a witness from Customs to testily on its behalf, perhaps it could have rehabilitated the clear implication of C.S.D. 82-121 by showing that actual Customs practice required disclosure. The Court holds that importers are required to disclose escalation clauses in entry documents but that Hitachi America may not be held liable because Customs confused the obligation by virtue of its own published rulings. C. Hitachi America Is Liable For Negligently Failing To Report EPA Payments At Once The Court does hold Hitachi America liable under § 1485 for negligently failing to report EPA payments as they were received. Section 1485 obligates importers to report “at once” any receipts showing that the price declared on the invoice was incorrect. If an importer wishes to avoid this duty, there are two simple statutory mechanisms at its disposal. First, an importer may arrange to hold open liquidation under 19 U.S.C. § 1504(b): “The Secretary may extend the period in which to liquidate an entry by giving notice of such extension to the importer ... if ... the importer ... requests such extension and shows good cause.” Id. Second, as illustrated by C.S.D. 82-121, an importer may deposit estimated duties and when the merchandise is liquidated “[t]he appropriate Customs officer shall collect any increased additional duties due or refund any excess of duties deposited as determined on a liquidation or reliquidation.” § 1505(b). Defendants do not contest the dutiability of EPA but counter that because the final amount of escalation cannot be determined until the end of the project, “at once” for long-term importations means after completion of the contract. This argument is the logical extreme of the position already rejected by the Court and countered by C.S.D. 82-121 that uncertain escalation payments cannot be material to the price at the time of entry as a matter of law and logic. To indulge the argument, the position that escalation payments can only be material to the price of imported merchandise when the aggregate becomes known does not comport with common sense. Take MARTA’s MVA payments as an example. Assume for a moment that CIA was remitting dollars to CIJ so that MVA payments were part of the price of the merchandise. The joint venture received over eighteen million dollars in MVA payments. Much of that money was accumulated long before the end of the project. It is pure vagary to maintain that sums certain are not material until the cumulative certainty has materialized. Surely a putative investor in the joint venture would rely on the accumulated amount in making investment decisions. EPA payments are material to the price of merchandise and must be reported at once to Customs absent alternative arrangements pursuant to statute. Customs rulings uniformly state or entail that uncertain escalation payments are material to the price of the merchandise, giving notice to importers that they must report escalation receipts at once unless liquidation has been suspended or estimated duties have been deposited. C.S.D. 82-121 concludes that escalation payments are part of the price of merchandise and permits a deposit of estimated duties based on the contract price; it does not permit the importer privately to run a tally and pay the aggregate in the end, but envisages an adjustment to the dutiable value when the adjustment amount applicable to the entry becomes known. Even defendants’ claimed reliance on C.S.D. 84r-78 declares that “transaction value will be represented by the price actually paid or payable, to be established by corrected invoices ____” Id. at 1032 (emphasis added). Now, even if Customs allowed a lowering of the dutiable price in C.S.D. 84-78 despite the importer’s failure to disclose the escalation clause upon entry, to interpret the ruling as permitting the importer to run a tally of adjustments over several years and announce the aggregate at the end is not a fair reading. The fair reading is that importers must deliver corrected invoices, or as here, when the invoices can never be accurate, some other notification to Customs should be made when the importer discovers the amount of the adjustment. Defendants cite the following example in a futile attempt to identify a published Customs’ position announcing that EPA may be paid at the end of a long-term project: Q. The merchandise undergoing valuation is a partial shipment of a larger order against a long-term contract, containing escalation clauses that will not be finalized until the contract is completed. How would the price actually paid or payable be determined for the merchandise being appraised? A. Keeping in mind the requirement for one-year liquidation, appraisement could he withheld until the amount actually payable (after completion of the contract) could he determined. Current practice in such situations is about the same. Department of the Treasury, U.S. Customs Service Office of Commercial Operations, Customs Valuation under the Trade Agreements Act of 1979 78 (1981) (emphasis added). As the government points out, the example contemplates payment within the normal liquidation period. Were this not so, the Court would be compelled to hold that the duty to pay at once was nebulous and Hitachi America could not be penalized for accumulating EPA without reporting to Customs. However, the plain language of § 1485 combined with Customs’ published rulings put importers on notice that escalation payments must be reported at once unless other arrangements have been made. Hitachi America violated § 1485 by not reporting escalation payments upon receipt. Once the violation was established, Hitachi America had the burden to show that it exercised reasonable care under the circumstances to ascertain its statutory obligations. Defendants argue that the evidence confirms Customs’ acquiescence in their alleged past practice to pay EPA at the end of long-term projects. Were this true, it would be evidence tending to show that Hitachi America acted reasonably under the circumstances because it may have been lulled into a belief that reporting EPA at the end was acceptable under Customs’ practice. However, the Court is not persuaded that the events cited actually rose to the level of a “past practice”. Before delivering its analysis on that issue, the Court remarks that even if there were such a past practice, it would not operate to estop the federal government from enforcing the statute. Despite the harsh consequences, the federal government is not estopped to enforce laws against citizens who were advised by government officials that their actions were legal when the government later ascertains that such actions were not in compliance with the law. OPM v. Richmond, 496 U.S. 414, 110 S.Ct, 2465, 110 L.Ed.2d 387 (1990); Melex USA Inc. v. United States, 19 CIT -, 899 F.Supp. 632 (1995). To support the allegation of a past practice, defendants point to a 1989 exchange between Hitachi America’s Import/Export Planning Manager and the San Francisco District Director of Customs. The Import/Export Department Manager, who was in charge of customs compliance, wrote to the District Director in order to make a “voluntary tender” of duties on currency escalation adjustments remitted by Hitachi America to Hitachi Japan in connection with a multi-year project. Attached to the letter is a list of entries involved, some which had liquidated and some which had not, and a column showing the entries upon which additional duty was tendered. The District Director accepted the check for the duties and replied that the sum remitted “does not need to be a prior disclosure.” (emphasis in original). If it had been considered a prior disclosure under § 1592(c)(4), Hitachi America would have been liable for penalties under that section up to two times the amount of lost duties for fraudulent retention of the duties owed or for interest if gross or simple negligence were involved. No one with personal knowledge of the exchange testified, and the document speaking for itself says little about a past practice to pay EPA duty at the end of projects. The document indicates that not all of the entries involved in the project had liquidated. All that the document and the reply from Customs show with certainty is that on one occasion, a District Director communicated to Hitachi America that a tender of EPA, other than at the time of entry, during the course of a project was not actionable, under the voluntary disclosure provision. Defendants chose not to call a witness to testify regarding the circumstances of this event, and the Court will not infer anything more than what is implied by the document. Defense counsel did exact testimony from Ms. Crecco, the former Import/Export Department Manager, that the form of the letter to Customs was similar to the form of letters she composed when she made other voluntary tenders. A document in evidence shows that Ms. Crecco herself made a voluntary tender of EPA duties on behalf of Hitachi America in August 1985 and she testified Customs had not sought penalties under the prior disclosure provision in connection with those withheld duties. Defense counsel pursued Ms. Creeco’s history of making voluntary tenders of EPA during her employment with Hitachi America: Q. And during the course of your professional activities at Hitachi America, you did in fact make voluntary disclosures, didn’t you? A. I made — I made voluntary tenders of duty along the lines we have just discussed, such as the EPA types. Q. In fact, is it fair to say that every voluntary disclosure you made at Hitachi America involved EPA, to the best of your recollection? A. I’m not so sure about that, Mr. Assaf. * * * Q. And in any of the voluntary disclosures that you were involved in ..., did Customs ever tell you that Hitachi America was engaged in fraud? A. I don’t think so, no. Tr. 2316-17. Now it is clear from this testimony and Ms. Crecco’s August 1985 letter to Customs that she made plural voluntary tenders of EPA to Customs without adverse consequences. However, the ambiguous documents from 1989 discussed above, Ms. Creceo’s testimony that there were incidents in which she made voluntary tenders of EPA without adverse consequences, and the parade of Hitachi officials testifying about a past practice of which they had no personal knowledge do not imprint the canvas with sufficient points of reference from which the Court may extrapolate a pattern of conduct establishing a “past practice”. The conclusion which follows is that defendants did not demonstrate a state of mind such that a belief in the acceptability of their conduct is the only circumstance under which Hitachi America’s exercise of reasonable care should be analyzed. The evidence demonstrates that Hitachi America was negligent by failing to exercise reasonable care in ascertaining its duties to report EPA. Internal corporate documents sent between Hitachi America and Hitachi Japan in 1984 before the first entry show Hitachi officials expressing the opinion that although EPA was subject to duty, in other long-term projects the base price was listed on the commercial invoice and additional duty was paid later without objection by Customs. In responding to a February 1984 telex from Hitachi Japan suggesting that it was permissible to list the base price on the invoice, Mr. Toda, the Hitachi America official in charge of the MARTA project at that time, replied that in past projects the base price was listed “and the escalation portion must have been dealt with at the time of duty liquidation.” Mr. Toda testified that he understood liquidation procedures at the time he sent this telex, but thought that EPA was dutiable at the end based on Hitachi America’s prior experience in long-term projects. Notwithstanding his familiarity with liquidation procedures and his knowledge that EPA was dutiable, Mr. Toda failed to arrange for suspended liquidation of the MARTA entries in 1984. Mr. Toda apparently had some understanding of what mechanisms to pursue in order to resolve customs issues. For example, just pri- or to the MARTA entries, Mr. Toda resolved the problem of inconsistent F.O.B. prices appearing on MARTA project entry documents by consulting the Savannah and Chicago offices of the Customs Service, a customs broker, and the Hitachi America legal department. Yet Mr. Toda declined to consult these same resources regarding his imminent awareness of the EPA reporting issue and instead turned to Ms. Crecco for advice, an employee hired in February 1984 who was in charge of customs compliance programs. In a report written in 1984 before the first MARTA entry, Ms. Crecco advised Mr. Toda that he should (1) arrange for suspended liquidation or (2) deposit estimated duties. Initially, Mr. Toda accepted Ms. Crecco’s advice and decided to deposit estimated duties. He sent Ms. Creceo’s memorandum to Hitachi Japan and stated “Please find enclosed a memorandum issued by our legal group[sic] about duty liquidation. [Hitachi America] will take up the second option for the project.” In mid-April, Mr. Toda held a discussion with an official from Hitachi Japan and reversed his initial decision to deposit estimated duties. Mr. Toda testified that he had no recollection about why he changed his mind. The government argues that by not following Ms. Creceo’s advice