When is the deadline for limitation period: recovery of money paid as an invalid tax?
The catalogue records a 6 months period from The date of the payment. This draft page remains free only until its source, worked example and limits are reviewed.
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Calculation basis and source
- Period
- 6 months
- Trigger
- The date of the payment
- Counting
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- Rollovers and holidays
- Holiday, closure and order treatment must be independently documented before publication.
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- NONE. Limitation of Actions Act 1936 (SA) s 38(3): "The period of limitation prescribed by subsection (2) cannot be extended, and if the action is not brought within that period, the right to recover the money is extinguished." The general extension power in s 48 is therefore unavailable, and s 45 (legal disability) cannot revive an extinguished right.
- An unusually short SA-specific period: six months from the date of payment. Do not assume the general six-year restitution period in s 38(1) applies to invalid tax recovery. Recovery is further limited by s 38(3a) and (3b) (no recovery to the extent it would produce a windfall profit because the burden of the payment was passed on and not repaid) and by s 38(5) (any other Act prevails to the extent of inconsistency). Corrected on verification: the researched entry stated the discretion as 'Section 48 (restricted gateways)' and set rollover to next-open-day. Both were wrong. Section 38(3) expressly provides that this period cannot be extended and that the right is extinguished on expiry, so there is no extension power at all, and an extinguishment provision is a contrary intention displacing the next-business-day rule in Legislation Interpretation Act 2021 (SA) s 44(2), which applies only subject to contrary intention. Whether the 12-month floor in s 47 lifts this period is arguable and untested here: s 47(1) is expressed to apply to a limitation imposed by 'any Act', but s 47(2)(d) excepts an action to the nature or purpose of which the limitation is, in the court's opinion, essential. Do not assume the floor applies. Source: Limitation of Actions Act 1936 (SA) s 38(2), (3), (3a), (3b) and (5), version 1.7.2021 published under the Legislation Revision and Publication Act 2002.