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Regulatory: Understanding how to take advantage of the duty drawback

When doing business overseas, don’t give money away

Does your company export items that were manufactured from goods that were imported into the U.S? Or has your company simply exported the same items that were previously imported? In either case, your company may be eligible to claim almost a complete refund from the U.S. government for any duties paid when the goods were originally imported—minus a small 1 percent fee charged by the government. Many companies are not aware of this refund possibility—called “duty drawback”—and consequently do not take advantage of a valuable resource available to U.S. exporters.

Drawback is a refund of duties paid on imported goods when the goods—or other items manufactured from the goods—are subsequently exported or destroyed. The government provides drawback refunds as a way to help U.S. companies compete in foreign markets by eliminating some of the costs associated with importing goods into the U.S. There are several types of drawback, but two of the most common ones that apply to exporters are “manufacturing drawback” and “unused merchandise drawback.”

Manufacturing drawback applies when duties are paid on imported goods and those goods are then used to make an item in the U.S. that is subsequently exported. To take advantage of manufacturing drawback, a company must first obtain a manufacturing drawback ruling from customs. For certain goods, there are general rulings that apply, in which case the company need only submit a letter of intent to customs to comply with the general ruling. Customs maintains a list of the general rulings as an appendix to its drawback regulations.

Unused merchandise drawback—also called “same condition” drawback—applies when goods are imported into the U.S. and then exported without being changed. In most cases, the drawback need not be claimed on the exact goods that were imported if the exported goods are commercially interchangeable with the imported goods. Unlike manufacturing drawback, no drawback ruling is required before filing an unused merchandise drawback claim. However, the exporter must provide prior notice to Customs of its intent to export. Depending on the circumstances, customs may waive this prior notice requirement.

As the saying goes, however, “some restrictions apply.” Under the North American Free Trade Agreement (NAFTA), different drawback rules apply to exports to Canada or Mexico. For example, although “same condition” drawback is available for exports of the exact same goods on which duty was previously paid, exporters cannot substitute interchangeable goods for purposes of a drawback claim. Also, the amount of duties refunded will be the lesser of the total amount of duties paid when the goods were imported into the U.S., or the total amount of duties paid when the goods were subsequently imported into Canada or Mexico. Likewise, if the goods were imported into a “foreign trade zone” (which usually allows companies to avoid paying duty), when the goods are exported to Canada or Mexico, they will be treated as if they were first withdrawn from the foreign trade zone, thus subjecting them to U.S. customs duties. However, customs can then reduce those duties by the amount paid to the NAFTA country to which the goods were exported

Time limits also apply. For drawback to be available, the export must occur within five years of the import for a manufacturing drawback, and within three years of the import for unused merchandise drawback. In both cases, the drawback claim must be filed with Customs within three years of the export. There is also good news for companies just learning about duty drawback: on a one-time basis, Customs will allow a company to go back and make a drawback claim on all exports that occurred up to three years ago, even where no prior notice was given.

Although drawback claims can be lucrative, they often require complex accounting. A company looking to file drawback claims must diligently keep track of entry and export documents. The company must also be able to trace imported goods to the exported item—no simple task. Although several different accounting and inventory methods are permissible, customs requires a company to pick one and stick with it. The method should be chosen carefully, as it may impact the amount of refund a company can obtain. Not surprisingly, rather than manage this accounting system in-house, many companies turn to outside vendors for assistance.

Because these recordkeeping, inventory and accounting requirements come with a cost, companies should do the math to see whether instituting a drawback program is worthwhile. For companies that export a lot of goods, committing the necessary resources to a drawback program often pays for itself many times over. When the import history is significant, the drawback refunds can add up quickly.

Contributing Author

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Eric Wilson

Eric J. Wilson is a shareholder in Godfrey & Kahn's Litigation Department and a member of the White Collar Defense and Investigations Practice Group. He...

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Contributing Author

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Wendy Arends

Wendy Arends is an associate in the Godfrey & Kahn's Madison office, where she advises businesses, organizations and trade associations regarding their interactions with local,...

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