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Commercial Law Keyed to Whaley
Bayway Refining Co. v. Oxygenated Marketing and Trading A.G.
Citation:
215 F.3d 219 (2d Cir. 2000)Facts
In 1998, OMT sent Bayway a confirmation letter to purchase 60,000 barrels of a type of petroleum called Methyl Tertiary Butyl Ether (MTBE). This confirmation letter from OMT did not mention tax liability. Bayway’s faxed an acceptance of OMT’s offer soon after, sending an acknowledgment form which included a reference to its General Terms and Conditions. Within Bayway’s General Terms and Conditions was a tax clause stipulating that the buyer, in this case OMT, would be liable to pay the Bayway the amount of any excise tax incurred by Bayway related to the sale of petroleum. OMT was never directly sent the General Terms and Conditions and also never objected to them. OMT accepted delivery of the MTBE barrels a month later. Bayway ultimately paid an excise tax of $464,035.12 on the transaction and sought reimbursement from OMT based on the tax clause. OMT refused to pay, arguing that the General Terms and Conditions, and the tax clause therein, was never incorporated into the contract between the parties. Bayway filed suit to recover from OMT the amount of excise tax it had paid.
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