Fentanyl Tariff Refunds Unlikely Under USMCA Post-Importation Claims: Attorney
It's unlikely -- but not impossible -- that an importer will be able to obtain a refund on paying fentanyl tariffs levied under the International Emergency Economic Powers Act when the importer hadn't claimed USMCA at entry beforehand, according to trade attorney Michael Roll, who was speaking on a Sept. 3 webinar sponsored by A.N. Deringer.
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Roll was addressing a potential scenario under which an importer failed to claim USMCA at entry, but may still do so because of the option to claim USMCA after obtaining and submitting a certificate within a one-year period after filing.
But whether this option applies to goods that are subject to IEEPA fentanyl tariffs is "an open question," according to Roll.
Based on "everything I've seen in my office, and the way the law is written, the answer would be ‘no.’ You can just get the regular duties back, but not the fentanyl tariffs back," Roll said. "I have emails from people at Customs saying that's the agency's position. But I have not -- full disclosure -- in my office ever had to fight over whether that's correct or not."
That said, "our advice is, you can always ask for it," he continued. "There's certainly no harm in asking for the refund. But I think if the plan is you will get them back, you might be disappointed, because I don't believe Customs will give them back if you didn't claim USMCA at time of entry."
Besides possible IEEPA fentanyl tariff refunds, the trade community also is watching for how the Supreme Court might potentially take up the case on the legality of the IEEPA tariffs (see 2509020026). One outstanding question from that proceeding is whether companies will be offered refunds on the tariffs they paid should the courts strike down the IEEPA tariffs and the reciprocal tariffs.
As the trade community awaits the outcome, companies also may be filing protests to preserve their right to obtain refunds, according to Olga Torres, a trade attorney who spoke on a Sept. 4 webinar sponsored by Sayari.
“There has never been a situation that I can remember in my lifetime where we have refunds at this level -- that there will be multi-billion dollars of refunds,” Torres said. "But track your entries for liquidation, and depending on the timing, you may have to do protests to preserve your right.”
Roll said it's theoretically possible that CBP could refund companies, "but I really doubt that. ... I think the answer is, you're going to have to sue and/or file protests. And personally, I think protests are a waste of time. I think the real remedy is going to be people who sue on time and go to court and say, ‘I want my money back too.’ I think those people will get refunds. But that's all contingent upon the Supreme Court agreeing these things are illegal, which is a big open question right now, given the politics."