| November 15, 1990 | |
| Appeals Branch | Rulings Directorate |
| Appeals & Referrals Div. | R.B. Day |
| K. Berini | 957-2136 |
| 902814 |
SUBJECT: 19(1) Subsection 164(1) Statute Barred Refund
We are writing in reply to your memorandum of October 9, 1990, wherein you requested our views concerning the application of subsection 164(1) in the case of the above noted taxpayer.
As indicated in Appeals Branch Directive 90-11 which was just released, there is no authority or discretion in the Act to issue a refund where the return is filed beyond the three year period. While we appreciate the reasons for your recommendation that the restrictions in subsection 164(1) be ignored in this case, the only justification for such action would be the colon law principle of restitution based on "unjust enrichment".
23 In a memorandum to your Branch dated August 14, 1990, Revenue Programs Division clearly indicated that they were not prepared to extend their refund policy to this particular file.
In our view, since their is no clear statutory basis for allowing a refund to 19(1) and there is no administrative practice in place to permit such a refund the refund should not be made.
21(1)(b)
Your files are returned herewith.
R.J.L. ReadDirector GeneralRulings DirectorateLegislative and IntergovernmentalAffairs Branch
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