Tax & Trade Blog

The liberalization of Canada’s trade policies over the years has now lead to a situation where goods may often be capable of being imported to Canada on a duty free basis under Canada’s most favoured nation (MFN) tariff, without needing the benefits of Canada’s various preferential trade agreements (PTAs) like the NAFTA.

A problem arises, however, when after importing such goods on the basis of the MFN tariff, an importer discovers, or is assessed, on the basis that the original tariff classification was incorrect.   The problem specifically arises where, more than one year has passed from the original date of accounting, and the new “correct” tariff classification is duty-positive under MFN.  

In Canada Border Services Agency’s (CBSA) historic view of these situations, an importer is obliged to correct the tariff classification and treatment under s. 32.2(2) of the Customs Act, and pay the required MFN duties owing (with no application of the relevant PTA).  CBSA has historically denied application of PTA benefits in these situations on the basis that PTA refunds are usually limited to one year from accounting: see for example section 74(3)(b)(ii) of the Customs Act.

CBSA’s historic practice has been overturned by the Canadian International Trade Tribunal (CITT) in the recent decision in Bri-Chem Supply Ltd. v. CBSA ((October 2, 2015) AP-2014-017 (CITT)).

In Skechers v. CBSA (2015 FCA 58), the Federal Court of Appeal (“FCA”) considered a Canadian International Trade Tribunal (“CITT”) decision which applied a broad interpretation of “price paid or payable” for Customs Act valuation purposes, resulting in a significantly higher value for duty for the imported footwear at issue in the case, and with far-reaching implications for all Canadian goods, especially apparel and footwear items.

Although importers have regularly been subject to paying additional customs duties on their imports as a result of subsequent upwards price adjustments, importers had been limited in their ability to obtain a refund or reduction in duties where subsequent downward price adjustments were made.  However, a recent change in Canada Border Services Agency (CBSA) policy in light of a 2014 Canadian International Trade Tribunal (CITT) decision now provides importers with an expanded ability to claim reductions in duty in the context of downward price adjustments.

January 1, 2015 was a big day for changes in the General Preferential Tariff (the "GPT").  On that day, Canada removed 72 countries from the list of nations that benefited from the GPT.  Most notable among the list of countries removed from the GPT was China, an exporting superpower, but other significant countries on the list include Brazil, India, Russia, South Africa, and Turkey.  The full list is provided at the bottom of this page.

Like many areas of law, in customs valuation there are cases that represent so-called high and low water marks – cases that represent the extremes of possible outcomes, given a set of facts. Every once in a while, a case comes along that moves these marks around – often surprising practitioners. The recent case of Skechers USA Canada Inc. v. CBSA is one of those cases, and the decision of the Canadian International Trade Tribunal (the “CITT”) has caught the attention of many practitioners.