Missed a tax refund deadline? Don't lose hope

Missed a tax refund deadline? Don't lose hope

Every provision in every piece of legislation has its own reason for being, and any act that contradicts the spirit of the law, even if carried out by a government body, is generally disallowed if it deprives a person of his or her rights. This principle is also applied in considering the time limit for a taxpayer to claim a tax refund.

In general, Section 27 ter of the Revenue Code entitles the taxpayer to request a refund of taxes paid, or withholding tax that is withheld in excess of the required amount or without any tax liability, on condition that the refund application must be lodged within a period of "three years from the due date of the filing of the tax return".

In reality, a situation requiring a taxpayer to claim a refund could arise after the statutory deadline. This phenomenon raises a critical issue as to whether the normal three-year rule should still apply. Is the taxpayer being forced by law to give up the right to a refund?

A recent court case illustrates how this could play out. It involved an auction of land held by the Legal Execution Department, in which the winning bidder paid withholding tax on the purchase price when the ownership transfer was registered in 2004. The court later revoked the auction results, and a letter was issued in 2008 to the Land Department with an instruction to void the registration of the land transfer. Thus, the status of the parties to the transaction reverted and it was as if no transaction had ever taken place. As a result, the bidder had no liability to pay withholding tax either.

The Legal Execution Department refunded the purchase price of the land to the bidder, but not the withholding tax, and the bidder decided to seek a tax refund from the Revenue Department in 2009. Predictably, the department refused to make the refund, asserting that the three-year deadline from the due date of the withholding tax filing in 2004 must apply.

However, the Supreme Court ruled in favour of the bidder, saying that "the three-year deadline under Section 27 ter did not apply to this case, as it was not a claim for a refund of excessive withholding tax, or a refund of tax being withheld without a liability to do so, as of the time the tax was withheld". Accordingly, it ordered the department to refund the withholding tax paid in 2004.

This decision is in line with the fundamental rule of the Civil and Commercial Code (CCC), which requires the statute of limitations to begin "from the moment when the claim can be enforced". This means the moment when the taxpayer's right to claim a tax refund occurs, in this case the auction revocation order in 2008.

That seems to be a happy ending for the bidder, but a question remains as to what the time frame for the tax refund should be in this case.

In the absence of a time frame stipulated by the court for submitting the tax refund form, as the situation is not covered by any specific provision in the Revenue Code, the only guideline appears to be the general 10-year rule of the CCC.

In a similar case, the Department of Highways withheld tax from the price it paid to the Crown Property Bureau (CPB) for some land in 1993. Since the Bureau was not subject to corporate income tax liability, it requested a refund of withholding tax from the Revenue Department without submitting a proper tax refund form (Kor 10).

It was not until 2010, after the Revenue Department issued a letter confirming that the Bureau had no liability to pay tax, that the latter submitted Form Kor 10. The department refused to make a refund on the grounds that the form had been submitted after the expiry of the three-year rule under Section 27 ter.

The court recently ruled that, "since the CPB was not a taxable unit under the Revenue Code, and it had no liability to file tax return, Section 27 ter did not apply as the three-year deadline from the due date of the filing of tax return could never start". Thus, the court applied the general 10-year rule of the CCC instead.

You may be facing the situation of a tax refund claim for which the three-year deadline in the Revenue Code has already passed. But it could still fall under the 10-year rule of the CCC before you have to give up your right to claim. You should take a close look at where you stand, and not simply surrender your rights because someone in your local Revenue Department office says you have no case.

By Rachanee Prasongprasit and Professor Piphob Veraphong. They can be reached at admin@lawalliance.co.th

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