CIT Denies HMF Refund as No Proof CBP Received Export Sheets

In Ford Motor Company v. U.S., the Court of International Trade denied Ford’s protest of U.S. Customs and Border Protection’s refusal to refund harbor maintenance taxes¹ that Ford allegedly paid on post-July 1, 1990 exports². The CIT stated that Ford had not provided sufficient supporting documentation in its claim for a refund of the HMT.

HMT Refund Requests on or After July 1, 1990 Must be Supported by Claimant

The CIT stated that the HMT refund regulation carries the force of law and is binding on the Court. It provides that for refunds of alleged HMT export payments made on or after July 1, 1990, the claimant must substantiate its request with supporting documentation in accordance with 19 CFR 24.24(e) (4) (iv) (C), to verify proof of payment, if Customs records and the corresponding Harbor Maintenance Tax Payment Record do not reflect either a paper or electronic record of alleged payments.

Can Only Use Export Vessel Summary Sheet as Support if CBP Accepted It with Tax

Among the supporting documentation necessary to establish entitlement to a refund is a copy of the Export Vessel Movement Summary Sheet that Customs accepted with the HMT payment at the time it was made. In addition, Customs would consider other documentation offered as proof of payment of the HMT, such as canceled checks and/or affidavits from the exporter attesting that payments from the exporter were made exclusively for export harbor maintenance fees in the amounts sought to be refunded and were made by the party requesting the refund or the party on whose behalf the refund was requested.

Ford Did Not Prove CBP Had Accepted Export Vessel Summary Sheets

Ford’s HMT refund request involved alleged payments made after July 1, 1990 for which there were no paper or electronic records in Customs’ HMT Payment Report, and thus supporting documentation was required to verify the alleged payments.

Ford sought to prove it had complied with 19 CFR 24.24(e) (4) (iv) (C) by relying upon twenty Export Vessel Summary Sheets. However, the CIT noted that Ford had not provided any evidence that the Export Vessel Summary Sheets were accepted by Customs at the time of Ford’s alleged HMT payments. The record to the Court lacked evidence that these Summary sheets had ever been provided to and ultimately accepted by Customs.

As Ford Failed to Prove CBP Had Accepted Summary Sheets, No HMT Refund Possible

The CIT granted summary judgment to Customs ruling that Ford had failed to provide the necessary documentation (e.g., that Customs had accepted the Export Vessel Summary Sheets with the HMT payment) to support its claim for refund of HMT payments.

¹Also known as Harbor Maintenance Fees (HMF)

²In 1998, the Supreme Court affirmed the decision by the CAFC (United States v. U.S. Shoe Corp.) that the HMT was unconstitutional as it applied to exports by violating the Export Clause of the U.S. Constitution (No Tax or Duty shall be laid on articles exported from any State.)

(See ITT’s Online Archives or 05/16/02 news, 02051610, for BP summary of CBP's final rule that amended the HMF export refund process.)

(CIT Slip Op 10-135, dated 12/16/10)