The Tariff Refunds Are Flowing. Who Gets to Keep Them Is the Next Question.

Customs reports it has certified more than $100 billion in refunds since the Supreme Court struck down the IEEPA tariffs. But importers with older entries may face sue-or-lose deadlines as early as February 2027, customers who paid tariff surcharges are asking for their share, and buyers and sellers are working out who owns the refund in a deal.

On February 20, 2026, the Supreme Court held, six to three, that the International Emergency Economic Powers Act does not authorize the President to impose tariffs. The “fentanyl” and “reciprocal” tariffs importers had been paying since early 2025 fell with it. The majority opinion said nothing about refunds; only Justice Kavanaugh’s dissent warned of the “mess” to come. 

Seven months later, refunds are flowing, the process is unfinished, and a second round of questions has started over where the money ultimately belongs. If your company imported anything under those tariffs, or sells to companies that did, this may affect you. 

A note on scope: CGL does not practice customs or trade law. This article is about the contract and deal questions that tend to follow a refund. For the filing itself, work with customs counsel or a licensed broker. 

Where the process stands, as we understand it 

In March, the Court of International Trade ordered Customs and Border Protection to refund IEEPA duties to importers generally, not just the ones that sued, and later that month extended the order to entries whose liquidation had become final. In April it re-entered those orders in successor cases. CBP built a system, called CAPE, to pay the money out. Phase 1 opened April 20 for entries not yet liquidated or liquidated within the prior 80 days. Phase 2 opened June 29 for entries flagged for reconciliation. As of August 21, according to CBP’s latest report to the court, about $132.5 billion in potential and certified refunds had been accepted for processing and about $106.6 billion in duties and interest had been certified and sent to Treasury. The refunds are reported to carry interest. 

The open fight is over older entries: the ones liquidated more than 80 days before a CAPE claim could be filed, which CBP treats as final and says it has no authority to reopen without a court order. The government appealed to the Federal Circuit in early June, arguing that the trade court cannot order refunds on those entries for importers that never filed their own lawsuit. The government’s brief was filed August 10, the importers’ response is expected this month, and practitioners are anticipating a ruling later this year, though appellate timing is never certain. Meanwhile, the trade court has begun ordering refunds on older entries for importers that did sue, and CBP has indicated that Phase 3 of CAPE, which covers those entries, will be open only to importers holding a court order. Phase 3 had been targeted for August 20 and has been pushed while CBP adds system checks, with no new date announced as of this writing. 

Why this matters now 

If your company has older entries and has not sued, there may be a clock. Refund actions in the trade court are generally subject to a two-year limitations period. Exactly when it starts running is unsettled; the conservative approach counts from the date the duty was deposited. On that count, practitioners place the earliest windows at February 4, 2027 for the fentanyl tariffs and April 5, 2027 for the reciprocal tariffs. Waiting for the appeal to resolve could, depending on how the accrual question is decided, mean a window closes first. That is a question for customs counsel, and it is worth asking soon. 

And even if the customs side is in hand, the refund tends to raise a second question. 

Who actually keeps the money 

Under customs law, as we understand it, the refund goes to the importer of record, the company that made entry and deposited the duty (or a payee it designated with CBP). That is often not the company that ultimately absorbed the cost. Many importers passed the tariff through to customers as price increases or as a separate line on the invoice. Some business customers are sending demand letters, and consumers have started filing class actions. 

We are not aware of any rule of customs law that requires an importer to pass a refund downstream. The answer is more likely to be found in the contracts. Practitioners who have looked at these claims generally describe the strongest ones as those where the contract says the buyer reimburses duties actually incurred, where the invoice showed a tariff surcharge as its own line item, or where the seller promised a true-up or credit if duties came down. Where the tariff was simply folded into a price increase under a contract that says nothing about it, the claim looks weaker, though plaintiffs are pleading unjust enrichment and unfair-practices theories in consumer class actions, the earliest of which are reaching the motion-to-dismiss stage. No court has ruled on the merits of these theories that we are aware of. 

The accounting tends to follow the same logic. Under a loss-recovery model, a refund is generally booked as an asset when recovery is probable; under a gain-contingency model, recognition waits until the refund is realized. Either way, if customer contracts contain pass-through language, the same refund may create a liability, and that liability may need to be recorded before the asset. How the refund and any pass-through liability are recorded is a question for your accountants; the point here is that the contract review probably has to happen before the balance sheet is relied on in a financing or sale. 

How refunds are showing up in deals 

Purchase agreements signed in 2025 were typically silent on tariff refunds. The ones being negotiated now often are not. 

The first question is who gets it. Sellers tend to argue the buyer’s price already reflected the tariff burden, so a refund to the buyer would be a windfall. Buyers tend to answer that the refund is an asset of the business, and that any customer claims will land on the company they now own. In an asset deal the point is sharper: the selling entity generally stays the importer of record and is the party CBP will pay, so a buyer that wants the refund needs a way to capture it (complicated by the federal Anti-Assignment Act, which limits assigning claims against the government before they are allowed and a payment warrant issued), and a seller that wants to keep it typically carves the claim out of the purchased assets. 

The second is the gap between signing and closing. The target may need to file suit to protect its rights, respond to CBP, or answer a customer demand. Who controls those steps, and who pays for them, is showing up in interim covenants. 

The third is diligence. Buyers are asking for entry data, CAPE status, customer contracts with pass-through language, and any demand letters. And because a secondary market for these claims has developed, with reported pricing around 60 cents on the dollar and some disclosed trades near 70, both sides now have a rough reference point for what a claim might be worth. 

The tariffs you may still be paying 

The refund should not be confused with the end of tariffs. A 10 percent global surcharge under Section 122 ran from February 24 until it expired July 24; the trade court held it unlawful in May, that ruling is stayed on appeal, and it may produce its own refund question. On the day it expired, new Section 301 tariffs of 10 or 12.5 percent took effect on imports from roughly 60 economies. Section 232 tariffs on steel, aluminum, copper, vehicles, and other products remain in place, and 50 percent tariffs under Section 338 took effect on certain Canadian goods on August 22. The IEEPA refund is a recovery of past cost, not a reduction in future cost. 

Questions worth asking this month 

• Whether you have entries that were (or will be) liquidated more than 80 days ago without a CAPE claim, and if so, whether you have talked to customs counsel about filing 

• What your customer contracts say about duties, surcharges, and true-ups 

• Whether any customer has sent a demand letter 

• How the refund is booked, and whether a pass-through liability belongs next to it 

• If a deal is in progress, whether the purchase agreement says who gets the refund and who handles the claim 

The refund process, dollar figures, and litigation status in this article are current as of September 10, 2026, are drawn from the sources listed below, and are changing weekly. The Federal Circuit appeal, the Phase 3 launch, and pending class certification motions in the trade court could each change the picture for importers with older entries. 

How CGL can help 

CGL advises companies on the contract and transaction questions that tend to follow a tariff refund: what you may owe customers, what your supply agreements should say going forward, and who gets the refund in a financing or sale. 

If you have a refund in process, a customer demand in hand, or a deal on the horizon, book a 30-minute call and we will walk through the contract and deal questions your refund raises.