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Test Claimants In Fii Group Litigation V. Irc I Notes

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TEST CLAIMANTS

IN

FII GROUP LITIGATION V. COMMISSIONERS INLAND REVENUE

OF

FACTS The case arose from the fact that, after the decision of the European Court in Hazel which held that the discriminatory tax structure which provided for exemption for ACT payments to companies resident in the UK was held unlawful by the EU Court, the UK government effected several amendments to the internal tax law. One of them was to reduce the period of limitation for actions based on mistaken payments from 6 to 3 years. Another was to provide that the limitation period runs from the date of payment and not from the date when the mistake was discovered, or was with reasonable diligence discoverable. The argument of the assesse here (ironically) was that the remedy in Woolwich was not available to them - this argument was based on the assessee's contention that that remedy is available only when tax had been paid in pursuance of a demand made by the Revenue. Since the tax here was paid by means of voluntary self-assessment, that was held inapplicable. This would lead to the result that the only remedy for tax collected in accordance with a scheme that was invalidated by Hazel would be the one provided by Deutche Morgan Greenfell. The assesse sought to rely on this fact to argue that the amendments to UK law meant that they did not have an effective remedy for breach of EU law. HOLDING LORD WALKER Mr Rabinowitz criticised the Court of Appeal's reasoning and conclusion on the following grounds (in very brief summary): first, that it was contrary to binding authority, that is the decisions of the House of Lords in Woolwich and DMG; second, that it was contrary to what he described as the "conventional understanding" of Woolwich; third, that it would create uncertainty, both as to the boundaries of any extended Woolwich principle and in the general development of the law of unjust enrichment. The Law Commission in its report, Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments (1994) (Law Com No 227) took the view that a demand was not necessary, in these words: "Lord Goff's reasons for the new restitutionary right, described above, also sustain these inferences, as they are based on the special position of the state and other public bodies. They do not focus on the particular requirements of a 'demand' or a 'tax'; but on the manifest injustice of allowing monies unlawfully

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