On a passé defense: unjust enrichment and the recovery of overpaid taxes

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A producer pays commodity taxes on sold goods, realizing only later that the tax was unlawful. Yet, his claim for refund is denied. Tax authorities in the U.S. and elsewhere use the “passing on defense” to deny refunds of unlawfully levied taxes. The defense states that some or all of the unlawful tax the producer paid was passed on to consumers through the price of goods, and thus the producer would be enriched if refunded fully. The passing on defense is largely perceived in legal scholarship as a choice between unjustly enriching the producer by a full refund and unjustly enriching government by denying it. A balance is thus called for, e.g., by applying equity considerations. This paper shows that a full refund of overpaid taxes never enriches the producer-taxpayer. Since the defense does not serve to prevent producers' enrichment, it should be rejected. Further, the paper demonstrates that, in fact, the passing on defense generates an additional implicit tax in the market.
Original languageEnglish
Pages (from-to)233-257
Number of pages25
JournalSupreme Court Economic Review
Issue number1
StatePublished - 2010


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