What Every Multinational Should Know About … Preserving the Right to IEEPA Tariff Refunds

Any company that has imported goods subject to the Trump administration’s fentanyl-based tariffs or reciprocal tariffs — i.e., the tariffs levied pursuant to the International Emergency Economic Powers Act (the IEEPA tariffs) — needs to consider filing an action in the U.S. Court of International Trade (CIT) to preserve the possibility of recovering refunds of these tariffs. Deadlines for filing initiating an action depend on when the importer entered goods, with the earliest potential deadline coming up on approximately December 15, 2025. The deadlines, however, should be considered to be on a rolling basis, as each entry is on its own timeline.

Now that several dozen complaints have been filed by a variety of importers, including Costco Wholesale Corporation, we anticipate that there will be a large increase in such protective filings over the coming weeks.[1] The prospect of such refunds — which could collectively total 100 billion dollars or more — stems from the ongoing U.S. Supreme Court consideration of whether IEEPA allows President Trump to imposed broad-based tariffs. During last month’s oral argument on this issue, the justices identified several potential bases for striking the tariffs down.[2] Justice Kagan suggested that the administration’s implementation of the IEEPA tariffs via executive orders infringed on Congress’s power to impose taxes and regulate foreign commerce, while Justice Alito suggested that perhaps it was not even possible for Congress to delegate broad-based tariff-setting authority to the Executive Branch under the non-delegation doctrine. Chief Justice Roberts explored the impact of the “major questions doctrine,” which raises the issue of whether Congress is required to plainly state its intent to delegate such a major power as the authority to impose broad-based tariffs. The hearing also included questions on whether the Trump administration’s stated justifications for the fentanyl tariffs and reciprocal tariffs — respectively, the influx of opioids into the United States and long-standing trade imbalances between the United States and other countries — constitute the kind of emergencies Congress meant for IEEPA to address.

The Court’s decision, which is expected within the next few months (but could be delayed to as late as June 2026), could produce a variety of outcomes. The Court could determine that the IEEPA tariffs are indeed legal, either on narrow grounds or in full, leaving the Trump administration’s tariff directives to CBP untouched and rendering the issue of IEEPA tariff refunds moot. It could invalidate the tariffs but remand the case back down to the lower courts for further development of the issue of how refunds should be handled. Or it might explicitly address the issue of refunds. But the contingency that prudent U.S. importers should now be preparing for is any variation of a decision that strikes down the tariffs. This is because the issue of refunds — in the words of Justice Barrett — likely will create “a mess.”

As a general matter, importers can seek refunds of overpaid duties by filing a post-summary correction (PSC) or, after liquidation has occurred, filing a protest for each customs entry for which duties (or other aspects of the entry) are disputed. Liquidation generally must occur within a year, regardless of whether CBP has yet decided on any outstanding PSCs for the entry. Following liquidation, importers have 180 days to file a protest with CBP and, later, 180 days to appeal any adverse decision on a protest to the CIT. Upon a ruling favorable to the protesting importer, CBP “re-liquidates” the entry and refunds the overpaid duties.

But when it comes to the IEEPA tariffs, it is not clear whether these duties are protestable. 19 U.S.C. § 1514 only allows for protests where CBP has potentially exercised its own decision-making authority. Where CBP carries out non-discretionary or “ministerial” activities, it is possible to argue that there is no protestable decision of CBP because President Trump ordered CBP to assess the fentanyl and reciprocal tariffs, thus giving CBP no discretion to do anything else. In multiple cases, the international trade courts have determined that, where CBP is acting in a ministerial fashion and collecting tariffs that were set by law, the assessment of such tariffs is a non-discretionary activity for which protest is precluded.[3]

Against this background, filing an action at the CIT would be considered a form of insurance, as initiating an action at the CIT allows the importer to request a preliminary injunction that would bar CBP from liquidating any of the importer’s entries involving IEEPA tariffs, pending resolution of the Supreme Court’s IEEPA tariff ruling and any related remand. Once such a preliminary injunction is in place, CBP would have no alternative but to honor the court’s injunction, thus negating the risk that CBP could choose to disallow any protests against liquidation filed on the basis of the pending Supreme Court decision. Although the degree of risk of such a denial is unknown, given the size of the potential refunds at issue, for any major importer, the risk-reward calculus likely favors filing an action.

The timing of when to file varies, depending on a particular importer’s import patterns. To ensure full coverage of all entries, importers need to act before even their earliest IEEPA tariff entries are liquidated. Because CBP typically liquidates customs entries approximately 314 days after entry, importers who paid under the earliest applications of the fentanyl tariffs, which went into effect on February 4, 2025, have upcoming tentative liquidations — and corresponding CIT filing deadlines — on and after December 15, 2025. Importers who paid duties pursuant to the earliest applications of the reciprocal tariffs, which went into effect as early as April 5, 2025, similarly have upcoming tentative liquidations on and after February 13, 2026.

In assessing this risk, it also is important to take into account the likely posture of the Trump administration, which has tended to take steps to retain tariffs even when one would expect a refund would be forthcoming. As an example, in some cases the administration imposed tariffs for only a few days before announcing that they would be suspended, generally on the basis of an agreement reached with a foreign government.[4] Even in the cases of tariffs that were repealed or suspended after a few days, the administration often has not refunded the extra tariffs collected during that short period, even though it could have chosen to do so. An additional example arises in the context of the de minimis exception, where the Trump administration revoked and then quickly reinstated the duty-free treatment of so-called de minimis imports without clarifying the possibility of refunds for goods imported during the short window when the tariffs applied.[5] Thus, one cannot overlook the possibility that the administration will order CBP to disallow any protests filed on the basis of the pending IEEPA tariff lawsuit.

Further, there is a class of tariff entries that are at particular risk, which is those entries that occurred prior to the issuance of the Supreme Court’s IEEPA tariff decision. Even if the Supreme Court strikes down IEEPA tariffs as unlawful, CBP could argue that any protests of IEEPA tariff liquidations prior to the Supreme Court decision were invalid. Their reasoning could be that, at the time the protest was due, CBP had no discretion to take any action other than imposing the duties because there was no court decision directing it to do otherwise. Given the uncertainty of the situation, and even some of the justices’ own comments on the unpredictability of how IEEPA tariff refunds will work,[6] we accordingly recommend that importers consider CIT preliminary injunction filings to fully protect their ability to collect potentially enormous refunds. The risk-reward calculus when balancing a large refund against even a small chance of losing out on the refund for many importers will dictate adopting a cautious approach.

In addition to filing in the CIT, U.S. importers can take other steps to preserve their ability to receive refunds. These include:

• Tracking Customs guidance and CSMS messages on the topic of IEEPA refunds.
• Preserving electronic and hardcopy records of all customs entries.
• Filing requests for CBP to delay the liquidation of entries.
• Immediately seeking CIT review for protests that go unanswered by CBP for more than 30 days.

If you have questions about these matters, please reach out to the authors or your Foley & Larder relationship attorney.

[1] See Jenny Gross, Costco Sues Trump Administration for Refund of Tariffs, New York Times (Dec. 2, 2025), www.nytimes.com/2025/12/02/us/politics/costco-trump-tariffs-lawsuit.html; Costco Wholesale Corporation v. United States et al., Complaint (Nov. 28, 2025), Court of International Trade Case No. 1:25CV00316.

[2] Oral Argument – Audio and Transcript for Learning Resources, Inc. v. Trump, President of U.S., Supreme Court of the United States (Nov. 5, 2025), available at https://www.supremecourt.gov/oral_arguments/audio/2025/24-1287.

[3] See Rimco Inc. v. United States, 98 F.4th 1046, 1053 (Fed. Cir. 2024) (stating that CBP decisions are only protestable under 19 U.S.C. Section 1514(a) when CBP actually “engage[s] in some sort of decision-making process”); U.S. Shoe Corp. v. United States, 114 F.3d 1564 (Fed. Cir. 1997), aff’d, 523 U.S. 360, 118 S. Ct. 1290, 140 L. Ed. 2d 453 (1998) (Where CBP was directed by Congress to apply a “Harbor Maintenance Tax” as if it were a duty, such an application was not protestable under Section 1514(a) because “Customs [had] not made any decision—it merely passively collect[ed] money in the amount required by the statute.”).

[4] For instance, between March 4 and March 6, 2025, a temporary 25% tariff was imposed on certain Mexican‑origin imports. Although the measure was suspended after only two days, CBP has taken the position that importers whose qualifying goods entered the United States during that brief period remain liable for the 25% duty.

[5] See David Lawder, Helen Reid, Lisa Baertlein and Lisa Barrington. Trump Pauses De Minimis Repeal as Packages Pile Up at U.S. Customs, Reuters (Feb. 7, 2025), www.reuters.com/business/trump-signs-order-delaying-tariffs-de-minimis-imports-china-2025-02-07.

[6] Oral Argument – Audio and Transcript for Learning Resources, Inc. v. Trump, President of U.S., Supreme Court of the United States (Nov. 5, 2025) at 153-54, www.supremecourt.gov/oral_arguments/audio/2025/24-1287 (“JUSTICE BARRETT: [T]ell me how the reimbursement process would work. Would it be a complete mess? … It seems to me like it could be a mess.”).