Overpaid tax—restitution
Produced in partnership with Etienne Wong of Old Square Tax Chambers

The following Tax practice note produced in partnership with Etienne Wong of Old Square Tax Chambers provides comprehensive and up to date legal information covering:

  • Overpaid tax—restitution
  • The law of restitution
  • Restitution and tax
  • Woolwich
  • Mistake
  • Limitation periods
  • Defences available to HMRC
  • VAT—application of the law of restitution
  • VAT—claims by the supplier against HMRC
  • VATA 1994, s 80—an exclusive statutory regime
  • More...

Overpaid tax—restitution

This Practice Note looks at the position where a person has overpaid tax (ie paid an amount by way of tax where tax was not due) and their rights to recover that amount under the common law of restitution. It covers direct taxes and VAT. Tax may be overpaid for a number of reasons, although many of the cases that have come before the courts have concerned tax that is overpaid because it was imposed in breach of EU law.

A taxpayer should first consider whether they have, or had, a statutory right to recover overpaid tax, see Practice Note: Overpaid tax—the statutory regimes. If there is a statutory right of recovery, the taxpayer may (depending on the terms of the statute) be precluded from bringing a claim under the common law of restitution, even if the statutory claim is now time-barred.

If the tax was overpaid before the end of the Brexit implementation period (IP), the taxpayer may also wish to consider whether they have a claim under the rights conferred by EU law (their ‘San Giorgio’ rights), for which see Practice Notes: Interaction of EU law and direct tax and VAT—European legal principles. If the tax was overpaid after the end of the IP, and particularly in relation to VAT, the taxpayer may wish to consider whether they have a claim under retained

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