33 I.T.R.D. (BNA) 1577
Ct. Int'l Trade2011Background
- Shell filed seven drawback claims (and one partial) for non-manufacturing substitution related to 1993–1994 imports and export of substitute derivatives.
- The statutory three-year period for drawback claims runs from the date of exportation of the substitute merchandise under 19 U.S.C. § 1313(r)(1).
- Shell's timely claims sought drawback only for import duties; Customs refunded 99% of those duties as claimed.
- On November 7, 1997, Shell filed protests seeking drawback of Harbor Maintenance Tax (HMT) and Environmental Tax (ET) for the first time, more than three years after export.
- Customs denied the protests; Shell subsequently filed a timely summons in this Court; this action was designated as a Rule 84 test case.
- Congress amended the statute in 1999 and 2004 to extend eligibility to taxes/fees like HMT and ET and (in 1999) to provide a six-month grace period for untimely claims; Aectra (Fed. Cir. 2009) held these amendments did not retroactively revive untimely claims unless timely filed or re-filed under the specified periods.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Were HMT and ET drawbacks timely claimed? | Shell contends its timely drawback claims included HMT/ET via protective or implicit claim. | Customs denied those as untimely; Aectra forecloses implicit/timely inclusion within three-year window. | No; timely HMT/ET claims were not preserved; three-year limit not satisfied. |
| Do 1999 and 2004 amendments retroactively revive untimely claims for taxes/fees? | Amendments were intended to provide retroactive relief for taxes/fees and preserve protest rights. | Amendments do not waive the three-year limit; 2004 amendments are prospective and do not revive untimely claims. | Amendments do not revive untimely claims; no retroactive revival. |
| Does Shell's protest within or after the three-year period preserve claims for taxes/fees? | Protests could serve as protective claims preserving later rights. | Protective protests must be timely; here they were beyond the three-year window. | Protests did not validly preserve HMT/ET rights. |
| Was Shell entitled to rely on 'default rule' or futility/philosophy to excuse timing? | Shell argued futility and the 'default rule' should toll or alter timing. | Aectra rejects futility; default rule not applicable to this administrative statute; no tolling. | Neither futility nor the default rule excused untimely filing. |
| Did fear of revocation of accelerated payment privileges justify late filing? | Shell claimed pre-2004 fear of accelerated payment revocation could excuse late filing. | Argument raised too late and insufficiently supported; no evidence that Shell was penalized or would be penalized. | Fear-of-penalty defense rejected. |
Key Cases Cited
- Aectra Refining & Marketing, Inc. v. United States, 565 F.3d 1364 (Fed.Cir. 2009) (held that 2004 amendments not designed to create new rights and that futility cannot excuse failure to file timely claims)
- Aectra Refining & Marketing, Inc. v. United States, 31 CIT 2086 (2007) (earlier CIT decision cited for context on taxes/fees and protective claims)
- Texport Oil Co. v. United States, 185 F.3d 1291 (Fed.Cir. 1999) (interpreted 'because of ... importation' language; linked to eligibility of MPF draw-back)
- George E. Warren Corp. v. United States, 341 F.3d 1348 (Fed.Cir. 2003) (ET drew into discussion; related to pre-2004 context and protective claims)
- Delphi Petroleum, Inc. v. United States, 33 CIT _, 662 F.Supp.2d 1348 (2009) (addressed protective claim concept and timing in similar context)
- Pillsbury v. United States, 22 CIT 769 (1998) (discussion on accelerated payment and related privileges pre/post-regulation changes)