The Court of Appeals for the Federal Circuit has issued an important decision that impacts any U.S. company importing goods from China that are subject to countervailing duties. These companies need to act soon to preserve their right to potential refunds of countervailing duty tariffs paid on entries of these Chinese goods.
The United States imposes countervailing duties on 23 different Chinese products — often, at triple-digit rates. These duties have been imposed on billions of dollars of affected entries, resulting in the payment of hundreds of millions of dollars of countervailing duties. Under the reasoning of the CAFC, all of these duties potentially need to be refunded, because the Court ruled that U.S. Congress never intended to impose these duties on non-market economies like China. The entries that potentially are due a refund (going all the way back to 2008) are the following:
The exact procedures to seek the refund of these duties are not yet set. It is possible that the U.S. government will seek review of this case, either through an en banc review or through appeal by certiorari to the U.S. Supreme Court (and perhaps both). Nonetheless, importers of record who have imported any of these goods need to evaluate their imports to determine whether they need to seek a refund of these duties from U.S. Customs and Border Protection (Customs). In many cases, even imports as much as seven or eight months prior to the listed dates may qualify for a refund, due to the imposition of "provisional measures" at the early stages of a countervailing duty investigation. Failure to file a timely protest could result in the liquidation of the entries, making it considerably more difficult (and perhaps impossible) for importers of record to seek refunds of these duties.
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Robert H. Huey