Almost all law schools require criminal law, typically in the first year. Among the memorable lessons of that course is that theft is not a single idea. It is a family of offenses involving the wrongful taking or keeping property that belongs to another. The categories vary by state, but five familiar forms are larceny, false pretenses, larceny by trick, theft of services, and embezzlement. Embezzlement is the odd one out: it begins with lawful possession by the wrongdoer, who later converts the property to personal use with intent to deprive the owner of it.

And so, when a state legislature retroactively repeals interest on refunds, requires a specific legislative appropriation before refunds can be paid, shortens the statute of limitations for constitutional claims, or uses similar tactics to prevent, delay, or complicate taxpayers’ recovery of funds the state had no right to collect in the first place, the resemblance to embezzlement is hard to miss. The point is not that these measures are criminal, but that they reveal a troubling feature of tax administration: legal control over the refund remedy can become a practical obstacle to repayment. These measures are rarely enacted in the abstract. They tend to arise in direct response to, or in anticipation of, adverse court decisions. The same sovereign that collected the invalid tax also holds the funds, sets the rules for refunding them, and can retroactively change the rules when repayment becomes inconvenient.

The analogy ultimately breaks down, of course. A state legislature has broad constitutional authority to structure tax remedies and set interest rates. These measures are not adopted for personal enrichment, but to preserve the state fisc. And retroactive legislation generally need only be rationally related to a legitimate legislative purpose to avoid violating due process. But as the English man of letters G.K. Chesterton once said, “[t]o have a right to do a thing is not at all the same as to be right in doing it.”