15 MB - Great Lakes Maritime Research Institute

complete and refunds are issued.Imports:One area where there has been recent movement has to do with the possibility of HMT refunds on imports. On April 18, 2001, theCourt of Appeals for the Federal Circuit (CAFC) overturned the decision of the Court of International Trade (CIT) dismissing thelawsuit brought by Thomson Consumer Electronics (Thomson). Thomson filed its claim relying on the inherent jurisdiction of thecourts (called 1581(i) or residual jurisdiction). Thomson claimed the HMT violated the U.S. Constitution regarding the PortPreference and Uniformity clauses. Thomson also asserted that since the HMT on exports was invalid, the HMT on exports and theHMT on imports could not be severed and so if one was invalid, so was the other. Rather than deciding the case, the CIT dismissedsaying it lacked jurisdiction because the proper basis to challenge the HMT assessment on imports was said to be by way of a protest(1581(a) or the traditional method of challenging assessments on imports).The CAFC held that Customs had no authority to decide whether or not the HMT was constitutional and so the filing of a protestwould be a futile act. The court went on to state that Thomson is not required to undertake a futile act and so the CIT decision wasreversed. The CAFC also made a point of stating it has not made any determination as to whether or not the HMT on imports isunconstitutional (which many think unlikely) as the merits of that claim must first be decided by the lower court.While it may well be several years before the HMT litigation regarding imports is finalized, importers may wish to take advantage ofthe Thomson decision by filing complaints at the CIT to preserve the issue. They can claim two (2) years of HMT payments at time offiling. Importers might also keep in mind that a future court could determine that the filing of protests is required and so undertakingboth steps in tandem may be the safest way to proceed.HMT REFUNDS4/01Effective March 28, 2001, Customs issued interim rules for those seeking refunds of harbor maintenance taxes, see T.D. 0125.INTEREST ON HMT - IS IT DEAD?C-3