Counterfactual Arguments Against Woolwich Liability
'Counter-Factual Arguments against Woolwich Liability' in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds) Defences in Unjust Enrichment (Oxford: Hart Publishing, 2016) 279-307
22 Pages Posted: 12 Oct 2016
Date Written: January 1, 2016
Abstract
The paper considers the argument that a tax authority which has received money paid as tax which is not due should be entitled to keep it because a valid tax liability would have arisen, had the invalid tax payment not been made. This can meaningfully be conceptualised as an argument either that the tax authority has not been enriched, or if it has been, that it can subjectively devalue its enrichment or raise a change of position defence to the taxpayer's claim. However, tax authorities should not be permitted to make any of these arguments because they undermine the rule of law which constrains executive action by requiring tax levies to be mandated by due process.
Keywords: Unjust enrichment, restitution, overpaid tax, tax law, rule of law
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