Docket: 2008-3755(IT)I
BETWEEN:
MOHAMMED SHOR UDDIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on September 17, 2009 at Toronto, Ontario
By: The Honourable Justice
Judith Woods
Appearances:
|
Agent for the Appellant:
|
Apolinar
Clavero
|
|
Counsel for the Respondent:
|
Iris Kingston
|
____________________________________________________________________
JUDGMENT
The appeal with respect to an assessment made under the
Income Tax Act for the 2005 taxation year is dismissed.
Each party shall bear their own costs.
Signed at Toronto, Ontario this 17th
day of September 2009.
“J. M. Woods”
Citation: 2009 TCC 471
Date: 20090917
Docket: 2008-3755(IT)I
BETWEEN:
MOHAMMED SHOR UDDIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1] The appellant, Mohammed Shor Uddin, appeals in respect
of an assessment made under the Income Tax Act for the 2005 taxation
year.
[2] In his notice of appeal, the appellant provided the
following reason for appealing:
Canada Revenue Agency failed to
respond to the true meaning of the objection.
[3] In the notice of objection, the facts and reasons for objecting
were stated as follows:
Because the re-assessment is not
constitutional; therefore, this should be vacated.
[4] At the opening of the hearing, the agent for the
appellant explained that the appellant was not challenging the reassessment on
technical grounds. Rather, it was submitted that the audit process which led to
the reassessment breached the appellant’s constitutional rights.
[5] Unfortunately for the appellant, even if the audit
process was flawed, this is not a basis by which the assessment can be vacated
by this Court.
[6] The applicable principle was described in Main
Rehabilitation Co. Ltd. v. The Queen, 2004 FCA 403, 2004 DTC 6763, as
follows:
[6] In
any event, it is also plain and obvious that the Tax Court does not have the
jurisdiction to set aside an assessment on the basis of an abuse of process at
common law or in breach of section 7 of the Charter.
[7] As
the Tax Court Judge properly notes in her reasons, although the Tax Court has
authority to stay proceedings that are an abuse of its own process (see for
instance Yacyshyn v. Canada, 1999 DTC 5133 (F.C.A.)), Courts have
consistently held that the actions of the CCRA cannot be taken into account in
an appeal against assessments.
[8] This is
because what is in issue in an appeal pursuant to section 169 is the validity
of the assessment and not the process by which it is established (see for
instance the Queen v. the Consumers' Gas Company Ltd. 87 DTC 5008 (F.C.A.) at
p. 5012). Put another way, the question is not whether the CCRA officials
exercised their powers properly, but whether the amounts assessed can be shown
to be properly owing under the Act (Ludco Enterprises Ltd. v. R. [1996]
3 C.T.C. 74 (F.C.A.) at p. 84).
[7] For these reasons, the appeal will be dismissed. Each
party shall bear their own costs.
Signed at Toronto, Ontario this
17th day of September 2009.
“J. M. Woods”
CITATION: 2009 TCC 471
COURT FILE NO.: 2008-3755(IT)I
STYLE OF CAUSE: MOHAMMED SHOR UDDIN and
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: September 17, 2009
REASONS FOR JUDGMENT BY: The
Honourable Justice J. M. Woods
DATE OF JUDGMENT: September 17, 2009
APPEARANCES:
|
Agent for the
Appellant:
|
Apolinar Clavero
|
|
Counsel for the
Respondent:
|
Iris Kingston
|
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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