While the Supreme Court made the pivotal ruling that IEEPA tariffs are illegal, and the lower courts were left to hash out what instructions to give U.S. Customs on refunds, recent developments make those instructions much closer. Last week the U.S. government tried to persuade an appellate court below the Supreme Court that refunds involve numerous complicated questions that should be evaluated over several months. This past Monday, however, that appellate court rejected the government’s arguments and ordered that decisions on refunds should now be addressed by the Court of International Trade (CIT). This is the district court that originally ruled against IEEPA tariffs and is the relevant court that would finally issue U.S. Customs actionable instructions.

Those instructions could still take a while but they are now closer than ever and require importers to accelerate required preparations. It is still not known whether the CIT will require each importer to file its own lawsuit seeking refunds or if the CIT will compel U.S. Customs to make refunds to all affected importers or some other process. Whatever process the CIT orders might also be challenged by the U.S. government again, further delaying refunds. 

In any event, and particularly due to the scrutiny the government will give refund requests, it is more important than ever for importers to have their import data and support documentation needed for a refund prepared and vetted.

These import data and support documentation required for tariff refunds include numerous reports and commercial documentation showing:

1. Imports on which IEEPA tariffs were paid.
2. The type of IEEPA tariff paid and associated Chapter 99 HTS classification.
3. Tariff amounts paid per entry number and line number.
4. Which entries have liquidated and when others will liquidate.
5. That the foregoing are ready to be organized into exhibits for filing with refund requests.

Importers should also evaluate whether there are any compliance vulnerabilities associated with imports for which refunds are requested as there is an increasing likelihood refund requests or heightened U.S. Customs enforcement priorities will soon prompt investigations.

We are happy to discuss what the types of required data, documents and preemptive compliance due diligence should entail based on an importer’s own circumstances. For more information, please contact Corey Norton, Sean Aasen, Katja Garvey or any member of Porter Wright’s International Business & Trade group.