Trade Pacific is assisting importers to proactively plan for refunds of tariffs imposed under the International Emergency Economic Powers Act (“IEEPA”). The legality of these tariffs is being challenged before the Supreme Court of the United States. If the Supreme Court invalidates the tariffs imposed under the IEEPA, importers will need to take targeted steps to preserve and realize their refund rights. We describe below possible refund mechanisms and factors importers should consider in order to secure a potential refund of IEEPA tariffs. If you are an importer wishing to file a court action under 28 U.S.C. 28 U.S.C. § 1581(i), please complete this form and one of our attorneys will contact you.
Possible Refund Mechanisms:
1. Protests: For entries that have already liquidated, protests can be filed to preserve an importer’s right to IEEPA refunds. While CBP has two years to issue a decision on a protest, this method would ensure that importers are preserving their rights to refunds. Importers have 180 days from the date of liquidation to file a protest.
Timing Considerations:
a. China fentanyl IEEPA – Effective Feb 4, 2025. Entries subject to these tariffs will begin liquidating around December 15, 2025, based on CBP’s normal 314-day liquidation processing. Liquidation could be sooner.
b. Mexico & Canada fentanyl IEEPA – Effective March 4, 2025. These will begin liquidating around January 15, 2026 (or sooner).
c. Reciprocal Tariffs for all others – Effective April 2, 2025. These will begin liquidating around February 10, 2026 (or sooner).
If entries have liquidated already, then the importer should file a protest within 180 days of liquidation. However, as discussed below, one legal theory is that protest may not be available as a remedy to importers in this context. The possibility of the U.S. Government adopting this interpretation has caused numerous parties to file their own court actions.
2. Court Action under 28 U.S.C. § 1581(i): Some importers have filed cases recently in the U.S. Court of International Trade (“CIT”) to enjoin CBP from liquidating any prior IEEPA entries to preserve their refund rights. These cases have been filed prior to any liquidation occurring. The parties seeking injunctions now are doing so based on the legal theories (1) that CBP’s protest process is not a process available to importers in this context and that once an entry liquidates, the duties are final; and (2) that the U.S. Government will argue that the only path for importers to obtain refunds is by filing their own cases under 28 U.S.C. § 1581(i), a statute that confers broader “residual jurisdiction” to the CIT by allowing for specific types of claims related to customs duties, the importation of goods, and other international trade matters to be brought to that court.
Although it is possible that a refund mechanism will be developed that will not require each importer to file its own action in a U.S. federal court, importers should consider this option to preserve all rights to refunds or to address unique facts. For many importers, the certainty gained with regard to the preservation of rights to refund of IEEPA duties likely justifies opening a court action at the CIT under § 1581(i) jurisdiction.
If you are an importer wishing to file a court action under 28 U.S.C. 28 U.S.C. § 1581(i), please complete this form and one of our attorneys will be in contact with you.
3. Post-Summary Corrections (“PSC”): For any unliquidated entries, importers can file PSCs to remove the IEEPA-associated Chapter 99 codes, which would trigger a refund of IEEPA duties. However, such duties likely would not be refunded until the entry has liquidated.