ESIM2500 - The law and legal powers: unjust enrichment

Whether or not statutory interest payments are subject to the unjust enrichment provisions described in ERODG (repayments of overpaid duty), depends if the associated repayment of the overpaid duty is subject to unjust enrichment. If the overpaid duty repayment is subject to the unjust enrichment provisions then the associated statutory interest will also be subject to the same terms and conditions.

All claims made under part 1 of schedule 3 to the FA 2001 (refers to ALDA 1979 and HODA 1979) in respect of duty overpaid as a result of incorrect refusal to authorise or approve a person, are not subject to the unjust enrichment provisions by virtue of section 137A (6) CEMA 1979. This therefore means that any associated statutory interest payment will not be subject to unjust enrichment provisions.

Section 137A (6) CEMA 1979 also excludes claims made under part 3 of schedule 3 to the FA 2001 (Appeals -paragraph 14) from the unjust enrichment provisions. Again this means the associated statutory interest payment will not be subject to unjust enrichment provisions.

General repayment claims denied or delayed as a result of an official error by HMRC are also not subject to the unjust enrichment provisions because they are not the result of overpaid duty.

There is an important distinction between repayment claims and overpaid duty for example:

• A person may have been wrongly denied a ‘repayment’ or ‘drawback’ of duty for which they have (or would have apart from HMRC’s error’) made a claim, or
• A person may have been wrongly denied rebate, remission or set off of duty and as a result overpaid duty.

FA 2001

CEMA 1979