Private Law Theory

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.

Mitchell, Charles, Counterfactual Arguments Against Woolwich Liability (January 1, 2016) in Andrew Dyson, James Goudkamp and Frederick Wilmot-Smith (eds) Defences in Unjust Enrichment (Oxford: Hart Publishing, 2016) 279-307.

First posted 2016-10-13 06:52:12