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FII GROUP LITIGATION V. IRC
FACTS In a group action in proceedings in the High Court commenced in June and September 2003, a number of companies in two United Kingdom groups of companies with overseas subsidiaries ("the test claimants") sought, inter alia, restitution of sums paid by them under various provisions of the United Kingdom advance corporation tax ("ACT") statutory regime in place between 1973 and 1999, or under section 18(Schedule D, Case V) of the Income and Corporation Taxes Act 1988 , on the ground that such legislation, in its treatment of dividends received by UK-resident companies from non-resident subsidiaries as compared with the treatment of dividends paid and received within wholly UK-resident groups of companies, amounted to unjustified difference of treatment between UK companies with resident subsidiaries and those with non-resident subsidiaries, contrary to the freedom of establishment provisions of article 43EC, and the free movement of capital provisions of article 56EC, of the EC Treaty, and so had been levied contrary to EU law, and that the Court of Justice had ruled that national law had to provide an effective remedy for moneys paid in respect of tax that had been paid pursuant to such unlawful levy. After the decision in Deutche Morgan, the Parliament had enacted section 107 of the Finance Act 2007 , which made a similar disapplication of section 32(1)(c) in relation to proceedings brought brought before 8 September 2003. HOLDING LORD WALKER Demand Point Lord Walker concluded that a "demand" is not required to trigger the unjust factor developed in Woolwich. He further held: There is vigorous debate among legal scholars on this topic at present, and uncertainty as to the outcome. But to decide that an official demand is not a prerequisite to a claim for the recovery of tax paid when not due ought not to add appreciably to the uncertainty. It would not be a decisive step towards a general "absence of basis" principle in place of the "unjust factors" approach that has prevailed in the past. It would merely be creating, in Mr Rabinowitz's metaphor, a rather larger island of recovery in respect of undue tax. LORD SUMPTION
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