Restitution
front page

What's new?

Archive front page

1995

1996

1997

1998

1999

2000

2001

2002

2003

2004

2005

2007

2006

2008

2009

I agree that a claim must be available. However, the claim was made, initially, in two ways: restitution and in tort. If the money is due and payable I don't think the claim for restitution should succeed. However, that is not problematic for the claim in tort. That the claim is properly seen as one for compensation is supported by the CA's decision in Sempra v IRC (especially para 49).

If the claim is one for compensation in tort law, the extended limitation period in s 32(1)(c) of the Limitation Act 1990 should not be available.

Consequently I think DMG v IRC is rightly decided but for the wrong reason.

Actually, I think DMG v IRC is a re-run of Moses v Macferlan. There, money was paid under a court judgment which was never set aside or appealed. A subsequent court allowed an action for money had and received to succeed. Seen as a claim for restitution of an unjustified enrichment the case is wrongly decided. (Goff & Jones 44-001). It should not be possible to recover back money which is due and payable. However, as the original court action had been obtained in breach of contract an action based upon this wrong could succeed.

RS

As far as I understand it, there is little or no reason a group would not choose the delay - there is no benefit in paying the tax early. The reason for the "election" seems to be twofold. First it is part of the IR's trend towards "hand ups" rather than "hand outs". Second, by requiring the election to be made, rather than providing an automatic exemption, the IR receives information on the payment earlier than it would otherwise do so through tax returns and so this increases their own certainty in receipts.

As for the question of whether the tax was "due" - I agree that the tax was in fact not due because no election was made. However, to allow this to prevent the claim poses two problems as far as I can see.

First, the ECJ clearly requires a claim to be possible (further to Metallgesellschaft).

Second, this would provide the IR with far too neat a method of escaping liability in all cases.