Defences to Claims for Restitution of Overpaid Tax

TY - JOUR

T1 - Defences to Claims for Restitution of Overpaid Tax

AU - Lee, James Simon Francis

PY - 2012

Y1 - 2012

N2 - This article assesses the range of defences potentially available to the Revenue in claims for restitution of overpaid tax. The Court of Justice of the European Union has recently reaffirmed that passing on is the only defence permitted where such a claim is based on incompatibility with European Union law. As a matter of principle, it is argued that a restrictive approach is, and should be, also adopted at common law: the defence of passing on, and the putative defences of submission to an honest claim, ‘exhaustion of benefits’ and ‘fiscal chaos’ should all be rejected as contrary to principle. Instead, concerns about the extent of the Revenue’s liability can be legitimately accommodated with the implementation of reasonable limitation periods, subject to the requirements of human rights and European jurisprudence.

AB - This article assesses the range of defences potentially available to the Revenue in claims for restitution of overpaid tax. The Court of Justice of the European Union has recently reaffirmed that passing on is the only defence permitted where such a claim is based on incompatibility with European Union law. As a matter of principle, it is argued that a restrictive approach is, and should be, also adopted at common law: the defence of passing on, and the putative defences of submission to an honest claim, ‘exhaustion of benefits’ and ‘fiscal chaos’ should all be rejected as contrary to principle. Instead, concerns about the extent of the Revenue’s liability can be legitimately accommodated with the implementation of reasonable limitation periods, subject to the requirements of human rights and European jurisprudence.

KW - RESTITUTION

KW - tax law

M3 - Article

SN - 1351-170X

VL - 20

SP - 13

EP - 37

JO - RESTITUTION LAW REVIEW

JF - RESTITUTION LAW REVIEW

ER -