Issue 250, March 3, 2000
Full Export HMT Refunds?

In a landmark decision, the Court of Appeals for the Federal Circuit ruled that an exporter may obtain a complete refund of all harbor maintenance taxes it has paid for its exports since 1987 (Swisher International, Inc. v. United States, 2000 WL 222532 (Fed. Cir. 2000)). A copy of the Federal Circuit's decision may be found at www.kmz.com/news/cases.asp.

In ruling that an exporter may receive a complete refund, the Federal Circuit accepted Swisher International's argument that an exporter may recover harbor taxes paid on its exports by filing an "amended" harbor tax return asserting that the HMT was paid in error (the error being that the HMT violated the Export Clause of the Constitution). Under HMT regulations, there is no deadline for filing such a return. Therefore, as long as the decision on Swisher is upheld until further appeal, exporters may file claims for refunds going back to enactment of the tax in 1987.

Should the Swisher decision be upheld by the Supreme Court, exporters likely will have to file amended tax returns (Customs Form 350) to claim a refund. The CIT and/or Customs may establish an alternative refund mechanism. In the meantime, exporters may wish to research their HMT payment history since 1987.

While the decision issued earlier this week is welcome news for exporters, it is not final. Customs likely will ask the Federal Circuit to rehear the case and/or ask the Supreme Court to review the decision of the Federal Circuit. Look for further updates if Customs pursues either of these options.

Advanced Education Institute - AEI Seminars 2000

Have you seen our seminar schedule for year 2000 yet? We are offering the following classes this year:

The Basics of Importing
Advanced Customs Compliance & Logistics Strategies
Export Process Control
Incoterms 2000
The Principles of Customs Valuation/Classification
NAFTA Today
The Principles of Duty Drawback

Please note that due to the complex nature of the subject matter, AEI cannot be responsible for actions taken by the reader in reliance on the information contained herein without prior consultation with AEI.