The U.S. Supreme Court has ruled that tariffs levied under an emergency economic statute during the previous administration were unlawful, but the high court stopped short of outlining how the federal government should return the estimated $175 billion in duties that were collected.
How customs duties are handled provides the backdrop to the dispute. For nearly all tariffed goods, an importer secures entry by posting a bond with U.S. Customs and Border Protection and remits an estimated duty to permit the merchandise to enter the country. A final determination of the actual duty owed - a process called liquidation - normally occurs 314 days after the goods are entered. If the estimate exceeds the final liability, the excess is refunded; if the estimate falls short, the importer must pay the difference.
Importers had pursued relief in the U.S. Court of International Trade in an attempt to halt liquidation while the Supreme Court considered the legality of the tariffs, but that court denied the request and the liquidation process continued.
The Supreme Court opinion did not specify a refund mechanism. In a dissent, Justice Brett Kavanaugh warned that the ruling would likely produce immediate practical complications, including the need to process refunds. He observed during oral argument that distributing repayments was apt to be "a mess." With the high court declining to set out the refund procedures, responsibility now reverts to the Court of International Trade to determine how repayments should proceed.
What the post-ruling landscape could look like is only partially defined already. More than 1,000 separate lawsuits have been filed in the Court of International Trade by importers seeking refunds, and trade lawyers expect a surge of additional claims. A December decision by that same trade court confirmed its authority to reopen final duty determinations and to order the government to pay refunds with interest - a power the prior administration said it would not contest. That ruling removed a layer of potential legal obstacle to refunding overpaid duties, according to trade specialists.
Practical access to refunds will require action by the parties who seek recovery. Legal experts say individual importers may need to file suit in the Court of International Trade to obtain repayment; it is unclear whether a single class action could encompass the broad mix of businesses that paid the duties. Under U.S. trade law, importers have two years to sue to claim a refund. The combination of filing deadlines and individualized litigation could place a heavier burden on smaller businesses, which generally lack the legal budgets of large retailers. Attorneys representing importers cautioned that some smaller firms might forgo seeking refunds rather than incur thousands of dollars in legal and court costs to press a claim.
There is precedent for large-scale government-managed refunds. After Congress created a harbor maintenance tax in 1986, the Supreme Court later deemed part of that tax unconstitutional in 1998. The Court of International Trade supervised a repayment process that involved more than 100,000 claimants, which was overseen by Judge Jane Restani, who remains a member of the court.
Trade attorneys noted that the federal government has improved its tracking of tariff payments and recordkeeping systems in recent years, which should aid in identifying who paid duties and how much they remitted. Small businesses, however, have urged the government to issue automatic repayments and expressed concern that a detailed interrogation of entry paperwork could slow or obstruct the refund timeline.
Even where refunds are authorized and distributed, the entity that actually receives money may not be the company that ultimately expected to get it. The importer of record - the party listed as responsible for ensuring compliance with import rules and paying duties - is the legal recipient of a refund. Which business ultimately benefits will depend on contractual arrangements between the party that actually paid the duty and the importer of record, a situation that could give rise to further disputes over the allocation of recovered funds.
Trade groups have warned that the overall process of resolving who is entitled to recover duties and actually distributing repayments may take years to complete.
Key points
- The Supreme Court declared the emergency tariffs unlawful but did not direct how refunds should be handled; the estimated amount at issue is $175 billion.
- The Court of International Trade will handle the refund process; more than 1,000 suits have already been filed and additional filings are expected, potentially favoring well-funded companies over smaller importers.
- Sectors affected include importers, retail and wholesale distribution, and small and medium-sized businesses that rely on imports and may face legal and administrative hurdles to reclaim duties.
Risks and uncertainties
- Legal and administrative burden - Smaller importers may abandon refund claims due to high legal and court costs, disadvantaging firms without large legal budgets; this impacts retail chains and import-dependent SMEs.
- Timing and complexity - Determining who paid duties and who is legally entitled to refunds could involve lengthy litigation and disputes over contractual allocations, likely elongating the refund timeline.
- Potential for incomplete recovery - Companies that were not the importer of record may not receive direct repayments, creating further contractual or legal disputes between trading partners and importers.
Note - Information in this article reflects the legal and procedural details as presented in the court rulings and commentary cited above. Where specifics are limited in the underlying material, the article reflects those limits rather than adding new facts.