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Whilst I accept that the fact that the money was due causes a difficulty, the problem is the structure of the tax law in this area.

It is correct that the election had to be made to obtain the relief and as the election was not made, the money was due.

However, the only reason an election was not made is due to the fact that the law did not permit it to be made - incorrectly. Should the fact that someone did not claim because the tax law wrongly said they could not, prevent a claim in unjust enrichment? The Revenue has received the money in advance due to its law being incorrectly framed and this has happened at the expense of the taxpayer.

If there had been an automatic exemption, there would be no issue - the tax would simply not have been due further to Metallgesellschaft.

Should this change simply because the Revenue chose to use a mechanism for such an exemption that allowed them to collect information earlier?

On Mon, 16 May 2005 13:50:18 +0100 Robert Stevens wrote:

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.