There is increasing interest in the trade community in potential refunds if the Supreme Court determines that the assessment and collection of tariffs under the International Emergency Economic Powers Act is unlawful. This article outlines actions importers should consider taking at this time to preserve their claims to such potential refunds. ST&R is prepared to provide advice and counsel on any and all of these actions.
Administrative Options
Protests. ST&R believes that monitoring entry liquidations and filing timely protests is the best way to protect possible refunds.
The Automated Commercial Environment protest system reliably sends messages with any status change for each protest. If U.S. Customs and Border Protection refuses to suspend a protest under the court case and denies the protest, the system will email that decision and we know to file a summons in the Court of International Trade to protect the refund. Further, depending on the reason for denial (if denied as unprotestable), we can file suit under 28 USC 1581(a) and (i) with a concurrent complaint to protect both potential avenues for CIT jurisdiction.
ST&R has filed protests and CBP has agreed to suspend them, preliminarily suggesting that CBP will process the protests as the courts direct.
If entries subject to IEEPA tariffs involve other protestable issues, those claims should also be made in the protest.
Importers can query ACE data going back to Feb. 1, 2025, and look for any use of an HTSUS code that begins with 9903.01 or 9903.02 and where duties were paid. The 180-day clock for protesting begins with the earliest liquidation of such an entry. Theoretically, one protest per importer of record number can be submitted every few months until there is a final decision in the court case.
Extension of liquidation. ST&R does not see much benefit to extension of liquidation requests because we are aware that CBP has denied such requests. Moreover, extensions do not follow a formal process. Keeping entries unliquidated for a longer time can result in a longer period of exposure on those entries for the importer and on the related customs bond, as well as the stacking of bond liability and potential collateral requirements.
Immediate Court Option
ST&R believes this process is unnecessary at this time and will remain an option after the Supreme Court decision is rendered, but in an abundance of caution ST&R is prepared to file for importers seeking a “belt and suspenders” approach.
Importers can consider filing an action now under 28 USC 1581(i) seeking refunds of duties already paid and, if necessary, enjoining further collection and/or entry liquidations. Any such case is likely to be stayed pending the Supreme Court decision.
However, seeking to enjoin liquidation may result in additional time for CBP enforcement activity, a longer period of liability on the particular customs bond, and issues with bond stacking.
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