Restitution Discussion Group Archives
| Sender: |
Charles Mitchell |
| Date: |
Mon, 16 May 2005 14:54:49 +0100 |
| Re: |
Deutsche Morgan Grenfell v IRC |
I'm afraid that I don't understand the distinction which
Robert makes between 'real' and 'sham' elections, nor why it should undermine
Monica's point. Can you please clarify, Robert?
Charles
At 14:35 16/05/2005 +0100, Robert wrote:
Monica wrote
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?
It was this argument which caused me
to ask whether the election was real. Looking at section 239 it seems
to me that the election is a real one.
The ability to carry back surplus ACT
for up to six years (originally - later reduced to only two years precisely
to limit this happening) found in s 239(3) provides a motive for not
wishing to elect to defer payment. If the election is not made the subsidiary
pays ACT and can carry it back against CT of these prior years up to
the maximum capacity. That CT is then refunded (with interest, as appropriate).
The situation could have arisen in
practice. Perhaps the group had no interest in paying dividends for
some years but was profitable, with plenty of distributable profits
in the subsidiary but not higher up. ACT capacity should be maximised
when dividends are then paid.
If the election was a sham, why is
it that in 247(3) a partial election is possible?
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