Preserving and Purchasing Tariff Refund Claims

On September 9, 2025, the Supreme Court agreed to hear the Trump administration’s appeal of an August 29, 2025, decision by the U.S. Court of Appeals for the Federal Circuit affirming a lower court’s order striking down the administration’s use of the International Emergency Economic Powers Act (IEEPA) as a basis for imposing tariffs on nearly all U.S. trading partners. Briefing begins this month and the Supreme Court scheduled oral arguments for November 5, 2025. As Orrick wrote last week, a decision is expected to follow quickly after. The case carries enormous economic implications for the federal government and for U.S. businesses that import foreign goods.

What Are the Potential Economic Impacts?

If the Supreme Court affirms the appeals court’s decision, the federal government could be forced to refund hundreds of billions of dollars of tariffs to U.S. businesses. Some investors are betting on this outcome and are offering to purchase tariff refund claims from businesses. There are reports that certain distressed investors have closed on refund claims already and are offering as much as 20-30 percent of the total amount of tariffs paid.

What Uncertainties Exist Around the Refund Process?

The Supreme Court may hold that some, all or none of the IEEPA tariffs are unlawful. If the government is forced to refund tariffs, it is unclear what the mechanics and timing would be. There is no statutorily provided process or timeline that would govern how a tariff refund program would be administered. The courts could dictate the eligibility requirements and deadlines for refunding tariff payments.  Or they may simply allow importers to rely on conventional, ad hoc administrative refund processes.

What Steps Can Importers and Claim Purchasers Take Now?

The IEEPA tariffs will remain in place pending the Supreme Court’s ruling. In the meantime, there are steps that importers and prospective claim purchasers can take now to maximize the likelihood that they will receive refunds if the Supreme Court rules against the government.

• Keep Good Records: As a general rule, businesses should keep detailed records of all of the goods they import and all of the tariffs they pay. This is especially important given that there is a realistic possibility that tariffs will be refunded and importers may be required to provide documentation to the government to be eligible to receive a refund. Prospective claim purchasers should carefully examine these records as part of the due diligence process before purchasing refund claims.
• Stay Informed: Businesses and claim purchasers alike should closely monitor the Supreme Court case and any subsequent developments related to a tariff refund program. Businesses should also review and retain any communications they receive from the government relating to tariffs and any potential refunds. Purchasers should make sure that their claim purchase contracts obligate sellers to share such communications with them. 
• Consider Filing a Customs Protest or Requesting a Liquidation Extension: If the Supreme Court strikes down the IEEPA tariffs, the government may take the position that only the named parties in the case and/or parties that have timely challenged their tariffs are eligible for a refund. Customs protests usually must be filed within 180 days of the date when the government “liquidates” or finally determines the amount of tariffs due with respect to a particular import. Businesses should closely track liquidation dates so they can ensure timely filing of protests. Businesses may also consider requesting a liquidation extension pending the outcome of the Supreme Court case. Claims purchasers should review any tariff protests or liquidation extensions during due diligence and should make sure their purchase contracts obligate the seller to timely file these items.
• Avoid Scams: When it comes to tariff refunds, businesses and claim purchasers should exercise caution when dealing with third parties, especially ones they don’t know. Fraudsters could pose as government officials, businesses or claim purchasers.

If you have questions about tariff refund claims or other tariff-related issues, please reach out to one of the authors or your Orrick contact.