What Every Multinational Should Know About … Preserving the Right to IEEPA Tariff Refunds (Updated with FAQs)

Any company that has imported goods subject to the Trump administration’s fentanyl-based or global/reciprocal tariffs — i.e., the “Liberation Day” 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.

At this point, over 600 complaints have been filed by a variety of importers, with filings increasing especially rapidly after the filing by Costco Wholesale Corporation generated considerable press.¹ The prospect of such refunds — which collectively total more than 30 billion dollars — 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, the Justices identified numerous potential bases for striking the tariffs down, including the non-delegation doctrine, the “major questions” doctrine, consideration of whether an expansive IEEPA would eviscerate all other tariff statutes, and whether the influx of opioids and long-standing trade imbalances constitute the kinds of emergencies Congress meant for IEEPA to address.²

The Court’s decision could produce differing outcomes, including remands to the trade courts for further development of the issue of how refunds should be handled. But the contingency prudent U.S. importers should be preparing for is any 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 entry within 180 days of liquidation. 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, these duties may not be protestable. 19 U.S.C. § 1514 allows protests only where CBP has exercised its own decision-making authority. In multiple cases, the 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 Here, President Trump ordered CBP to assess the fentanyl and reciprocal tariffs, giving CBP no discretion to do anything else, which arguably makes CBP’s collection of IEEPA tariffs a ministerial act.

Against this background, filing an action at the CIT is a form of insurance that sidesteps  arguments about  whether the IEEPA tariffs are protestable and gives importers control over their own refund status. The U.S. Government has stated to the CIT that it will not oppose reliquidation of entries that have incurred IEEPA-based tariffs (if they are definitively struck down in a final, unappealable decision), but only for Plaintiffs who have filed Section 1581(i) actions. The CIT accepted this stipulation, in part because it determined that Customs is not in a position to accept any protests of IEEPA tariffs that are based upon the duties potentially being unconstitutional. Because Customs does not have the power to make such determinations, the CIT concluded, “there is no Customs decision of a type that can be made and protested.”

Thus, the CIT determined that: (1) it is not possible for importers to file protests for IEEPA tariffs; (2) the concept of liquidation being final is irrelevant for situations where it is not possible CBP to allow protests; (3) therefore, the only potential route for importers to seek a refund is to file a 1581(i) action; (4) once importers file a 1581(i) action for IEEPA entries, the CIT has the inherent authority to order reliquidation; and (5) further, because the U.S. Government has stated that it will not oppose any CIT order to reliquidate, the U.S. Gov-ernment is judicially estopped from taking a contrary position in the future and cannot oppose any order for reliquidation for any party that has filed a section 1581(i) protective action.

The net result is that importers who are seeking assurances that they will receive refunds have only a single way to do so, which is to file a section 1581(i) action at the CIT. The Court is accepting all such filings and then staying them, pending resolution of the Supreme Court’s IEEPA case, after which the Court will deal with the cases in accordance with the Supreme Court’s opinion (which includes the possibility of the Court ordering reliquidation if the tariffs are struck down).

Importers no longer need to file actions by December 15th (which was the first date of liquidation for the first IEEPA tariffs, because there no longer is a need for importers who have filed protective actions to avoid liquidation. The deadline to file under 1581(i) is “within two years after the cause of action first accrues,” as per 28 U.S.C. § 2636(i)). Many importers who have a large amount of IEEPA tariffs are concluding that because it no longer is open to protest liquidation, the least risky route to protecting their right to refunds is to file now rather than later so that there is no question that they locked in the right to a refund before their entries liquidated. Importers also are concluding that given the unpredictability of tariff collection over the first year of the Trump administration, there is an advantage to having the process of refunds over-seen by an independent Article III court.

In short, due to the amount of refunds at stake, many importers are concluding that it is important to take every possible step to preserve their right to re-funds, particularly now that the CIT has determined that protests are not allowed for the IEEPA tariffs. In addition, because the Court has the authority to order reliquidation on a timetable, many importers are concluding that moving to the front of the line for any refunds also is a valuable consideration given the amount of tariffs at stake.

Wenn Sie Fragen zu diesen Themen haben, wenden Sie sich bitte an die Autoren oder Ihren Ansprechpartner bei Foley & Larder.

Häufig gestellte Fragen

FAQ #1: What are IEEPA tariffs and how do I determine how much my company paid?
IEEPA tariffs are the ones enacted by the Trump Administration in 2025 pursuant to the International Emergency Economic Powers Act. These tariffs consist of: (1) the fentanyl-based tariffs, announced in February 2025 on China, Mexico, and Canada to counter the influx of opioids into the United States; (2) the global and reciprocal tariffs, announced in April 2025 (on “Liberation Day”) to counter long-standing trade imbalances between the United States and other countries; and (3) IEEPA tariffs announced in July and August 2025 on India and Brazil. The first two sets of tariffs were squarely presented to the Supreme Court, but we anticipate the logic of the Supreme Court’s ruling would apply to the general scope of the IEEPA tariffs and thus would have implications for any and all tariffs imposed under IEEPA.

IEEPA tariffs do not include: (1) Section 232 sectoral tariffs (e.g., special steel, aluminum, copper, and lumber tariffs); (2) the Section 301 tariffs on China; (3) antidumping or countervailing duties; or (4) the normal Chapter 1-97 HTS-based tariffs that have existed for many years.

The net result is that importers who are seeking assurances that they will receive refunds have only a single way to do so, which is to file a section 1581(i) action at the CIT. Left open is the question of when such a filing needs to be made—i.e., whether it is possible to wait to file a 1581(i) action until after the Supreme Court rules (which is possible because the deadline to file under 1581(i) is “within two years after the cause of action first accrues,” as per 28 U.S.C. § 2636(i)). Many importers who have a large amount of IEEPA tariffs are concluding that because it no longer is open to protest liquidation, the least risky route to protecting their right to refunds is to file now rather than later so that there is no question that they locked in the right to a refund before their entries liquidated. Importers also are concluding that given the unpredictability of tariff collection over the first year of the Trump administration, there is an advantage to having the process of refunds overseen by an independent Article III court. Due to the amount of refunds at stake, many importers are concluding that it is important to take every possible step to preserve their right to refunds, particularly now that the CIT has determined that protests are not allowed for the IEEPA tariffs.

FAQ #2: When will the Supreme Court rule on the IEEPA tariffs?
There is no set deadline, other than the decision needs to be out by the end of the term in July. We anticipate that the Court will attempt to expedite a decision and thus will issue it within a few months (our best assessment is by the end of January).

FAQ #3: Are many companies filing?
Yes. There are now over 600 complaints filed, covering probably more than 1000 companies (as companies generally file actions to cover all affiliates). The overwhelming majority of these were filed recently.

FAQ #4: How many companies are likely to file and will filings continue after December 15^th?
Originally, the deadline to file these actions to ensure complete coverage was December 15, 2025 (314 days after the first IEEPA tariff was imposed, which assumes liquidation on the normal schedule). The CIT, however, now has ruled that it can order reliquidation to ensure the refund of IEEPA tariffs, which means

that it no longer is necessary to time filings to avoid liquidation. Thus, the December 15, 2025 deadline no longer is applicable. Importers who file even after that date can benefit from the Court’s declaration that it can order reliquidation and refunds for any parties that have filed protective 1581(i) actions.

FAQ #5: Why is it important to consider taking out this “insurance policy” regarding the potential IEEPA refunds?
For many importers, the large amount of potential refunds at stake is the determinative factor. IEEPA tariffs paid in 2025 are estimated to be well over $30 billion, and it is common for frequent importers to have seven- or eight-figure duties at stake, with the number growing by the day. Filing a protective 1581(i) action is an insurance policy to take all available steps to protect the right to refunds. Doing so is particularly important now that the CIT has determined that the normal route to seek a refund, which is filing a protest, is foreclosed for the IEEPA tariffs.

FAQ #6: When were the IEEPA tariffs imposed and when do they start liquidating?
The schedule for IEEPA tariffs is as follows:

• The earliest IEEPA tariffs went into effect on February 4, 2025 (fentanyl-based tariffs), making the earliest possible deadline for any entry on that day December 15, 2025, which is 314 days after that date.
• The earliest day for the global and reciprocal tariffs was April 5, 2025, which means that the earliest possible deadline for those tariffs is February 13, 2026. 
• Deadlines for other IEEPA-based tariffs are later and are not up for liquidation any time soon.

FAQ #7: What is involved in a filing?
Requiring filings include the filing of: (1) the summons; (2) the complaint; (3) all supporting forms; and (4) all actions to secure a judicial ruling that the US Government is judicially estopped from objecting to reliquidation for the filing importer(s).

FAQ #8: What information should an importer gather to support a filing?

• Whether the importer has any customs entries subject to the IEEPA tariffs. (Details related to these entries are otherwise not necessary at this time, although a date or estimated date of the earliest relevant entries would be helpful.)
• The importer’s parent corporation(s), all of its publicly-owned companies, any publicly-held company that has a 10% or greater ownership interest in the entity, and any publicly owned affiliate of the entity, and descriptions of the relationships between the importer and each identified company.
• The identity of the real party in interest if distinct from the filing importer.
• Whether the client already requested CBP to extend the liquidation date and whether CBP has ruled on the request.
• Whether the client already filed post-summary corrective actions regarding IEEPA entries and whether the CBP has ruled on the PSC.

FAQ #9: Should my company be filing protests against liquidation?
Under the CIT’s logic, as detailed above, there is no need to do so once the 1581(i) filing is made.

FAQ #10: Can we request that extension be extended to the 365-day mark or file a post-summary correction to claim a potential refund of the IEEPA tariffs?
We have heard from multiple importers that both of these requests are being denied. With the CIT ruling that CBP is required to disallow protests of the IEEPA tariffs on constitutional grounds, there is little reason why CBP would now start allowing extensions for such protests.