Foley & Lardner LLP partner Gregory Husisian is featured across media discussing recent developments regarding the initial phase of processing and distributing IEEPA tariff refunds.
Speaking to Bloomberg for the article, “Most tariff refunds facing denial if importers don’t opt in,” Husisian noted that “the mandatory opt-in for electronic payments make sense because Customs and Border Protection (CBP) has been moving toward such transactions for some time.” While most larger companies have likely already enrolled, he observed that smaller firms may not yet have done so.
“A smaller company may not even know about it,” he said.
In a second Bloomberg article, Husisian discussed the new IEEPA refund process through Consolidated Administration and Processing of Entries (CAPE) stating, “There is no deadline to submit a CAPE declaration, and if it is rejected, an importer can fix the error and resubmit.”
He anticipates glitches in CAPE, noting, “these errors might have an impact on the timing of a refund, they should not, in the end, result in the government picking up money for any importer that diligently follows up and corrects any errors that resulted in the CAPE submission being kicked back.”
Addressing the current status and legal uncertainties surrounding the CAPE, in Newsweek, Husisian explained, “there is a big difference between CAPE being open for the submission of information and CAPE actually sending out actual refunds.”
He further noted that the trade community must remain attentive to potential government appeals, stating that it will “need to wait and see whether the U.S. government appeals any aspect of the court orders to refund all the IEEPA tariffs, particularly on the critical issue of whether the Court of International Trade has the authority to issue [refunds] to importers who have not filed protective actions at the Court level.”
On growing likelihood of disputes as companies seek to recoup shared costs, in the Law360 article, “One Certainty As Tariff Refunds Start: ‘There Will Be Litigation’,” Husisian said clients are increasingly requesting “shot across the bow letters,” which state, “We know you passed on the tariffs to us. We expect you to use all available efforts to share them.”
He added, “People will say, ‘We played ball with you, you need to play ball with us.’”
Husisian also highlighted how contracts have become more explicit about cost sharing after earlier attempts to use force majeure clauses, intended for natural disasters rather than unexpected tariff changes, proved unhelpful.
Husisian’s commentary also appeared in The Boston Globe, MSN, Transport Topics, and Yahoo! Finance.
For more information on the Supreme Court’s decision to strike down the administration’s tariffs imposed under IEEPA, see here.
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