Protecting Your Right to IEEPA Tariff Refunds – IAB San Diego
Please see the following important message from Ted Murphy of Sidley Austin LLP regarding the IEEPA tariffs.
Following the recent Supreme Court oral argument in the challenge to President Trump’s use of the International Economic Emergency Act (IEEPA) to impose tariffs (i.e., the IEEPA fentanyl tariffs and the IEEPA reciprocal tariffs), we have been getting lots of questions from optimistic clients about what they should be doing to protect their right to a refund.
As we have suggested previously, all importers should make sure that they have the information necessary to substantiate the IEEPA tariffs paid to date. More specifically, we recommend that companies download the appropriate import report from the Automated Commercial Environment (ACE) to demonstrate the amount of IEEPA tariffs paid since they went into effect earlier this year. This should be updated every few weeks until the case is resolved, and any resulting refunds paid. This is (obviously) in addition to ensuring that all required import records (including the individual entry declarations) are maintained.
We also think that importers should consider filing protests with U.S. Customs and Border Protection (CBP).
More specifically, if the Supreme Court strikes down the IEEPA tariffs, we believe that importers may be required to file protests to claim a refund after the date of the decision. Once the Supreme Court decides the issue, the question of whether the IEEPA tariffs are lawful/payable becomes an issue the agency is able to decide. Before the decision, this is not a question the agency is authorized/equipped to decide (which is why the plaintiffs in the pending challenges did not file protests before going to court). Stated differently, CBP does not have the authority to decide whether the IEEPA tariffs are lawful or not; but once the Supreme Court says they are not lawful (or are lawful), then claims for refunds based on that decision are something CBP is able to decide – by following the Supreme Court decision.
We also think that importers have an incentive to file protests claiming a refund even before the Supreme Court decision is issued. While CBP may not be able to decide a protest challenging the validity of the IEEPA tariffs now, there are indications that CBP may be willing to suspend the protests pending a decision by the Supreme Court. CBP did something similar in 2021 for protests challenging the validity of the Section 301-China List 3/4A tariffs after litigation was commenced. See this CSMS.
If a protest is filed and suspended, and the Supreme Court later strikes down the IEEPA tariffs, CBP will presumably lift the suspension and process the protest as normal. As a result, importers who file protests challenging the IEEPA tariffs now may get refunds more quickly, if the Supreme Court ultimately strikes down the tariffs.
While entries generally liquidate on a 314-day cycle, we understand that CBP has been liquidating entries much sooner in many cases. Importers should be tracking the liquidation of their entries with IEEPA tariffs. For any liquidated entries on which IEEPA tariffs were paid, importers should consider filing protests now. Protests must be filed within 180 days of the date of liquidation.
If you have any questions, please contact our office at compliance@iab-sd.com.
Updates on Trade Relations with China
Please see the White House Fact Sheet detailing the agreement between President Trump and the President of China. The main points of interest are:
- The fentanyl tariff rate will go from 20% to 10% on November 10, 2025.
- The reciprocal tariff rate will stay at 10%.
- USTR will further extend the Section 301 tariff exclusions that were due to expire on November 29, 2025. The exclusions will now expire November 10, 2026.
Below are the details highlighted from the Office of the U.S. Trade Representative.
This week, President Donald J. Trump reached a trade and economic deal with President Xi Jinping of China — a massive victory that safeguards U.S. economic strength and national security while putting American workers, farmers, and families first.
For more details on this deal, please see the linked White House Fact Sheet.
This historic agreement includes Chinese commitments to:
- Halt the flow of precursors used to make fentanyl into the United States.
- Effectively eliminate China’s current and proposed export controls on rare earth elements and other critical minerals.
- End Chinese retaliation against U.S. semiconductor manufacturers and other major U.S. companies.
- Open China’s market to U.S. soybeans and other agricultural exports.
If you have any questions, please contact our office.