Alright, time for you all to join me on that volleyball court: bend your knees, move your feet!

We’re all sitting in anticipation of the Supreme Court’s decision on the IEEPA tariff cases, which we may see as soon as next month—though they have until June. If the Court determines the tariffs were illegal, according to many experts who have been weighing in, sitting is the opposite of what we should be doing. So, you ask, what should we be doing?

The number one thing you should do right now is pay attention. If you aren’t already subscribed to trade publications from law firms, accounting firms, and consultants, do it now to make sure you’re getting the latest information from varied sources. We are in an unprecedented situation, and there is no clear understanding of whether refunds will be available. If they are, there is no single path or opinion on the best steps companies can take to ensure they can secure those refunds.

If the tariffs are determined illegal, we would hope the Court would include a direction to refund the tariffs in its decision, but few think that will happen. This subject will likely be remanded back to the Court of International Trade (CIT), where there will be questions about who has jurisdiction to determine if refunds are issued and how they are to be administered.  

Here are some of the suggestions I’ve heard from various sources. If you haven’t yet engaged with your attorney or trade advisor on this subject, these will give you some topics to discuss with them:

1. Request extensions to liquidation on entries subject to IEEPA tariffs. If granted, it will give you time to file PSCs requesting refunds. If denied, it gives you a legal basis to bring a case to the CIT. This is the stance recently taken by a large importer who has been in the news for filing a case protesting denial of their extension requests. Note that not all advisors feel this is a necessary step.
2. Monitor liquidation status of entries subject to IEEPA tariffs and file protests in ACE, in batches, after they liquidate. You should obtain advice on the best language and arguments to use in your protests, as well as what you should upload as attachments. Protests must be filed within 180 days of liquidation. Almost all advisors I’ve heard from recommend protecting your rights via protest.
3. If you will be filing protests, you need to be sure there aren’t other issues with your entries, so you’ll want to audit. It’s not easy, but for most, there is a lot at stake.
4. There is an expectation that all of the steps above will result in a rejection, whether via denial or “timing out” (CBP has two years to respond to a protest, and if they do not, it is considered denied). You will need those denials in order to obtain a refund. The denials are what give you legal standing to bring your case for a refund to the CIT. Most advisors I’ve heard from say this will be necessary because refunds aren’t at issue in the Supreme Court case brought by several states, and in the other case, a decision would only grant refunds to the plaintiffs. So, if you want a refund, you will need to go to court—either as an individual or by joining a class action if someone creates a class.

The NAFTZ will be scheduling a webinar after the Supreme Court makes its announcement, so keep an eye out for that registration!

Finally, I hope you can shut off all of this noise for at least a few days during the upcoming holidays and take time to enjoy some peace and quiet—or your family, if the two are at odds!