Tariff Tactics

I. Introduction: After AGS—Importer Options

With the Supreme Court poised to issue its decision in Trump v V.O.S. Selections, Inc., No. 25-250, 2025 WL 2601020 (2025), this is a critical time for importers to act to protect tariff refund rights.  The Court’s decision may invalidate the sweeping “reciprocal,” “fentanyl,” or “Liberation Day” tariffs that President Trump imposed beginning in February of 2025 as unauthorized by the International Emergency Economic Powers Act (“IEEPA”).  With a decision looming, importers increasingly face pressure to protect potential entitlement to billions of dollars of duty refunds. 

The United States Court of International Trade (“CIT”)’s recent denial of injunctive relief to stay liquidation of IEEPA tariff entries confirms that liquidation and administrative clocks continue to run pending Supreme Court review.  AGS Co. Auto. Sols. v. U.S. Customs & Border Prot., No. 25-00255, slip op. 25-154 (Ct. Int’l Trade Dec. 15, 2025); see also, Smirk & Dagger Games v. Donald J. Trump, 1:25-03857 (D.D.C. December 17, 2025) (granting consent stay of proceedings pending Supreme Court Review in a class action challenge of IEEPA tariffs).  AGS suggests Importers should take a wait and see approach pending a Supreme Court decision.  This post discusses what actions importers can take to protect refund rights after AGS.

II. An Overview of Ad Valorem Duty Payment.

There are two kinds of tariffs that Importers pay: specific tariffs and ad valorem tariffs.  Specific tariffs are imposed as a fixed fee per unit of good imported.  Ad valorem tariffs, like IEEPA tariffs, are imposed as a percentage of an imported good’s value.  Thus, paying ad valorem tariffs requires reporting the value of goods imported for duty assessment.

Generally, the Importer of Record (“Importer”) is responsible for paying tariff duties.  Importers are typically the owner or purchaser of imported goods, but the Importer could also be a licensed customs broker by designation of an owner, purchaser, or consignee of goods.  Importers are responsible not only for paying duties, but for submitting paperwork to Customs and Border Protection (“CBP”) to ensure that goods comply with import restrictions.

Tariff duties vary based on the classification of the imported good on the Harmonized Tariff Schedule of the United States (HTSUS).  These ten-digit codes are based on the global Harmonized Schedule, with the first six digits of any HTSUS code matching the Harmonized Schedule, while the last four digits are U.S.-specific.  Importers are responsible for accurately reporting both the value of imported goods and HTSUS codes.  All of this data is reported through the Automated Commercial Environment commercial trade processing system (“ACE”), also used by CBP.

When an Importer pays an ad valorem tariff and files an “entry summary,” this payment is an estimated duty, based on the stated value of the good, the HTSUS code, and applicable tariff rate.  The entry process is not complete until CBP “liquidates” the entry, typically 314 days from the entry summary filing.  Liquidation finalizes the estimated payment made.  The first round of IEEPA tariffs have liquidated as of December 15, 2025 and liquidation deadlines continue to accrue.  Once liquidation occurs, judicial remedies may be significantly constrained, absent an order permitting reliquidation.

The AGS decision denied a group of importers’ motions to enjoin litigation, holding that the CIT has authority to order re-liquidation at a later date.  This decision seems to significantly narrow available judicial remedies pending Supreme Court review.  The AGS Panel also referred to certain administrative remedies as an “utter futility.”  Taken together, these statements in AGS appear to foreclose either Court filings or administrative protests as viable remedies for Importers.

However, as discussed below, Supreme Court review might not guarantee IEEPA refund rights, and Importers should carefully evaluate rights-preserving actions, including:

• Pre-liquidation Court filings;
• Pre-liquidation Post Summary Correction filings;
• Post-liquidation Protests; and
• Protest denial Court challenges.

III. Why Supreme Court Review Does Not Automatically Protect Refund Rights

There are at least three reasons that Supreme Court review may not automatically protect IEEPA refund rights.

First, the Supreme Court’s decision will not toll liquidation or other administrative deadlines.  This means that Importers who do not act now may lose rights pending Supreme Court review.

Second, and relatedly, Importers should not assume that any Supreme Court relief will apply retroactively.  During oral argument, Neal Katyal, counsel to certain IEEPA challengers, suggested that the Supreme Court could reduce refund complexity by limiting its decision “to prospective relief,” citing prior Court decisions like Office of the United States Trustee v. John Q. Hammons Fall 2006, LLC, 602 U.S. 487 (2024).  Should the Supreme Court take up this suggestion (or order some other type of partial relief) Importers who have filed cases will be at far less risk of losing tariff refunds.

Third, the AGS decision relies on judicial estoppel as a safeguard, i.e. the Government’s assurances that it will not oppose re-liquidation if the Supreme Court decision favors Importers.  But AGS does not analyze appellate decisions questioning the scope of the CIT’s authority to order reliquidation, nor does it consider whether a change in law could undo estoppel safeguards.  In either scenario, Importers who have filed cases pre-liquidation will be in a stronger position to seek refunds.

IV. How Importers Can Preserve Rights

As discussed above, Importers may wish to file pre-liquidation cases to preserve IEEPA rights, notwithstanding AGS.  In fact, an Importer who files a court case now can negotiate a stipulation with the Government, and thereby secure the Government’s promise not to oppose reliquidation later.  Several Importers have taken this approach, which significantly reduces risk of relying solely on estoppel as a safeguard.

Importers also have available administrative remedies. Even though these mechanisms are unlikely to result in immediate tariff recovery, they may preserve rights pending Supreme Court review.  These administrative remedies include requesting an extension of liquidation, filing a Post Summary Correction (PCS), and filing a Protest. 

In our view, all Importers should request that the CBP extend liquidation deadlines for paid IEEPA tariff entries.  Upon good cause, an Importer can request an extension of the liquidation deadline for up to one year.  The CBP has discretion to deny the request, and Importers like Costco have alleged that their requests were denied.  Nonetheless, Importers should consider making these requests.  There is no downside risk to the Importer, there is a possibility of an extension, and the request also strengthens an Importer’s case that it timely acted to preserve rights.

Importers can also file a PSC with the CBP on or before the earlier of 300 days from the date of entry or 15 days before liquidation.  The PSC is a tool to correct entry summary data.  Because it is limited to correcting entry summary data, it has little application to IEEPA refunds.  Importers may nonetheless evaluate a PSC as part of a larger refund rights preservation strategy.

After an entry’s liquidation, an Importer may file an administrative protest up to 180 days following liquidation. 19 U.S.C. § 1514(a).  A protest is a mechanism to contest a CBP decision related to imported goods.  It is unclear whether IEEPA tariff imposition is a protestable decision: the AGS Panel went so far as to call it an “utter futility” because the CBP cannot entertain constitutional arguments through an administrative protest.  Moreover, it is well-established that a protest is ineffective when it challenges the CPB’s “ministerial” acts in imposing tariff duties.  Nonetheless, a protest has value beyond CBP reconsideration, as it preserves the right to later judicial review and that courts will view an Importer’s administrative exhaustion or preservation favorably if reliquidation authority narrows.  Thus, Importers may consider filing a protest as a rights preserving mechanism, especially because a protest denial can be challenged in Court.

Finally, an Importer can file a civil action within 180 days of the CBP’s denial notice, if the CBP denies a protest.   The CIT has exclusive authority to review protest decisions under 28 U.S.C. § 1581(a).  However, this “a-case” jurisdiction does not allow the CIT to review ministerial acts of the CBP, and Importers should also take care invoke the CIT’s residual jurisdiction under 28 U.S.C. § 1581(i) for any lawsuits regarding protest denials.  While such “i-cases” are typically filed before liquidation, it is technically possible to bring a 1581(i) claim after liquidation and before 180 days of the protest denial notice or two years from the challenged executive order (for IEEPA tariffs, this would be in 2027). 

V. Practical Guidance for Importers Pending Supreme Court Review

Whichever approach Importers take to ensure rights preservation, the following steps are generally recommended.

First, Importers should track IEEPA entry liquidation dates.  After liquidation, Importers will be unable to request an extension of liquidation from the CBP, and certain judicial remedies are foreclosed.

Second, Importers should compile ACE data as to any paid IEEPA entries to ensure that information is readily available for filing PSCs or 19 U.S.C. § 1514 protests.

Third, Importers should ensure communication between internal finance, trade, and legal teams or external counsel so that decisions can be made in a timely manner without loss of rights.

Importers who act to preserve rights now could be in a much stronger position for receiving refunds if the Supreme Court invalidates the IEEPA tariffs.  Those who fail to act may find that recovery is barred even with a favorable Supreme Court decision.  On the other hand, should the Supreme Court issue a decision that decides a narrower question or avoids a merits determination, procedural defaults may still be very consequential to Importers.

VI. Conclusion

A Supreme Court decision invalidating IEEPA tariffs will not guarantee Importers receive refunds.  While we await a Court decision, Importers should evaluate judicial and administrative remedies now, so that procedural defaults do not bar Importers from refund recovery later.  Tariff Tactics will continue to track procedural and doctrinal issues relevant to tariff refund litigation.