Docket: 2010-1861(GST)I
BETWEEN:
ANNIE CHU MING LIAO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on October 29, 2010 at Toronto, Ontario
By: The Honourable Justice Judith Woods
Appearances:
|
For the Appellant:
|
The
Appellant herself
|
|
Counsel for the Respondent:
|
Ernesto Caceres
|
____________________________________________________________________
JUDGMENT
The appeal with respect to an assessment made under the Excise
Tax Act is allowed, and the
assessment is referred back to the Minister of National Revenue for
reconsideration and reassessment on the basis that the appellant is entitled to
a rebate in the amount of $5,870.67 in respect of the acquisition of a property
at 3608-30 Grand Trunk Crescent, Toronto, Ontario.
The
appellant is entitled to her costs, if any.
Signed at Toronto, Ontario
this 12th day of November
2010.
“J. M. Woods”
Citation: 2010 TCC 587
Date: 20101112
Docket: 2010-1861(GST)I
BETWEEN:
ANNIE CHU MING LIAO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
The appellant, Annie Chu Ming
Liao, acquired a condominium unit for the purpose of rental on June 29, 2007.
[2]
The appellant claimed a partial rebate
of the goods and services tax payable on the acquisition pursuant to section
256.2 of the Excise Tax Act. The claim was denied by way of an
assessment, which has been appealed to this Court.
[3]
The only issue is whether the
application was made within the two year limitation period set out in s.
256.2(7)(a)(iii) of the Act. The subsection reads:
256.2(7) A rebate shall not be paid to a person
under this section unless
(a) the person files an
application for the rebate within two years after
(i) in the case of a rebate under
subsection (5), the end of the month in which the person makes the exempt
supply referred to in subparagraph (5)(a)(ii),
(ii) in the case of a rebate under
subsection (6), the end of the month in which the tax referred to in that
subsection is deemed to have been paid by the person, and
(iii) in any other case of a rebate in
respect of a residential unit, the end of the month in which tax first
becomes payable by the person, or is deemed to have been paid by the person,
in respect of the unit or interest in the unit or in respect of the residential
complex or addition, or interest therein, in which the unit is situated;
(b) if the rebate is in respect of a
taxable supply received by the person from another person, the person has paid
all of the tax payable in respect of that supply; and
(c) if the rebate is in respect of a
taxable supply in respect of which the person is deemed to have collected tax
in a reporting period of the person, the person has reported the tax in the
person’s return under Division V for the reporting period and has remitted all
net tax remittable, if any, as reported in that return.
(Emphasis added.)
[4]
According to the appellant’s
testimony, which was supported by the rebate application, the appellant sent
the application to the Canada Revenue Agency (CRA) on May 4, 2009. The
application was sent by ordinary mail. After a period of time, the appellant
followed up with the CRA and was informed that they did not have her application.
She then sent another copy on August 8, 2009, which was received by the CRA on
August 18, 2009.
[5]
The respondent does not challenge
the appellant’s credibility and accepts her testimony. As a result, the
respondent concedes that the application was filed in time provided that the application
sent on May 4 was filed properly.
[6]
Counsel for the respondent
hypothesizes that the application mailed on May 4 may not have been received by
the CRA due to insufficient postage. The appellant testified on cross
examination that this was possible.
[7]
Although it is possible that the
application was not delivered due to insufficient postage, it is just as likely
that the document was lost by the CRA.
[8]
Counsel for the respondent brought
to my attention subsection 334(1) of the Act, which is a deeming provision
relating to mailing. It provides that anything sent by first class mail is
deemed to have been received on the day that it is mailed. The provision reads:
334(1) For the
purposes of this Part and subject to subsection (2), anything sent by first
class mail or its equivalent shall be deemed to have been received by the
person to whom it was sent on the day it was mailed.
[9]
It is accepted that the appellant
sent the application by ordinary mail on May 4, 2009. This is what used to be
known as first class mail, now known as letter mail: Canada Post Corporation
Act, First Class Mail Regulations.
[10]
Based on the evidence as a whole,
I accept that the application was properly sent by first class mail on May 4,
2009. Accordingly, the application was deemed to have been received on that
day. Although the relevant section uses the term “filed” rather than “received,”
the respondent has not suggested that anything turns on that in this appeal.
[11]
The appeal is allowed, and the
assessment is referred back to the Minister of National Revenue for
reconsideration and reassessment on the basis that the appellant is entitled to
a rebate in the amount of $5,870.67 in respect of the acquisition of a property
at 3608-30 Grand Trunk Crescent, Toronto,
Ontario.
[12]
The appellant is also entitled to
her costs, if any.
Signed at Toronto, Ontario this 12th
day of November 2010.
“J. M. Woods”
CITATION: 2010 TCC 587
COURT FILE NO.: 2010-1861(GST)I
STYLE OF CAUSE: ANNIE CHU MING LIAO and HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: October 29, 2010
REASONS FOR JUDGMENT BY: The
Honourable Justice J. M. Woods
DATE OF JUDGMENT: November 12, 2010
APPEARANCES:
|
For the Appellant:
|
The Appellant herself
|
|
Counsel for the
Respondent:
|
Ernesto Caceres
|
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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