97-1946(GST)I
BETWEEN:
DAVID E. JORSTEAD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 20, 1998, at Whitehorse, North
West Territories, by
the Honourable Judge C.H. McArthur
Appearances
For the
Appellant:
The Appellant himself
Counsel for the
Respondent:
John C. O'Callaghan
JUDGMENT
The
appeal from the assessment made under the Excise Tax Act,
notice of which is dated October 11, 1996, and bears number
10110014 is dismissed in accordance with the attached Reasons for
Judgment.
Signed at Ottawa, Canada, this 11th day of August 1998.
J.T.C.C.
Date: 19980811
Docket: 97-1946(GST)I
BETWEEN:
DAVID E. JORSTEAD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
McArthur, J.T.C.C.
[1] This is an appeal under the Goods
and Services Tax provisions of the Excise Tax Act. The
Minister of National Revenue (the "Minister") concluded that the
Appellant is entitled to no more than $1,940.61 of the $6,717.49
claimed as input tax credits with respect to the construction of
a $125,000 addition to his mobile home.
[2] The Appellant is a chartered
accountant who drove 20 hours, much of it over gravel roads
from Inuvik, North West Territories to Whitehorse, Yukon, for the
hearing of this appeal in July 1998. He advised the Court
that he now agreed that Inuvik is not a remote work site pursuant
to subsection 191(7) of the Income Tax Act.
[3] The Appellant claims additional
input tax credits with respect to the construction of the
addition to his mobile home on the basis that in his original
application for input tax credits he indicated that he had
contracted with Inuvik Construction Ltd. to build the addition.
Subsequently, he realized that it would have been more
advantageous to him to have indicated that he personally was the
contractor, at least in part, and asks the Court to make such an
order.
[4] The Respondent's Counsel submits
that such an order would be a declaratory one and not within this
Court's jurisdiction. The mathematical calculations proposed by
the Appellant are complex which I do not pretend to understand
with precision and I believe I can say the same for both parties
to this action. Fortunately, the calculations are not in
question.
Issue
[5] What it boils down to is that the
Appellant requests the Court to make a finding that the Appellant
was the contractor together with the Corporation.
[6] Mr. Petrin, who is the
principal of the Corporation Inuvik Construction Ltd., was not
present to give evidence because of illness. The Appellant and
Mr. Petrin are close personal friends. The original
documents including invoices indicate that the Corporation was
the contractor.
[7] The last paragraph of the
Appellant's Notice of Appeal reads as follows:
"The Notice of Decision does not adequately deal with the
question of who is the contractor Inuvik Construction Ltd. or
David Jorstead! It also contains one misstatement "that
Inuvik Construction Ltd. invoiced me for all costs including
labour", the truth is that I invoiced myself and that
Mr. Petrin even declined my offer to review the invoice. I
would like to bring Mr. Petrin and myself to a court in
Edmonton and try to convince the judge that "we both were the
contractor" and consequently the benefit of any doubt should be
allowed the taxpayer. Mr. Petrin's health has deteriorated
to the point where he uses oxygen and spends quite a bit of his
time in Edmonton now."
Legislation
Subsection 309(1) of the Excise Tax Act mirrors
subsection 171(1) of the Income Tax Act and reads as
follows:
"309.(1) The Tax Court may dispose of an appeal from an
assessment by
(a) dismissing it; or
(b) allowing it and
(i) vacating the assessment, or
(ii) referring the assessment back to the Minister for
reconsideration and reassessment."
Analysis
[8] Dealing firstly with the issue of
jurisdiction, the Respondent's Counsel referred to the decision
of the late Sobier, J. of this Court, Alan Brooks v.
Her Majesty The Queen, [1995] 1 C.T.C. 2880. In the
Notice of Appeal, Alan Brooks claimed relief from the
failure of his employer to remit source deductions.
Judge Sobier held that the Court did not have jurisdiction.
At page 2881, he stated that this Court is a statutory court
and limited to the jurisdiction conferred on it by various
statutes including the Income Tax Act, the Goods and
Services Tax section of the Excise Tax Act and the Tax
Court of Canada Act.
[9] Subsection 310(1) (GST)
reads:
"310.(1) Where the Minister and another person agree in writing
that a question arising under this Part, in respect of any
assessment or proposed assessment, should be determined by the
Tax Court, that question shall be determined by that Court."
[10] Then subsection 309(1) sets out how
this Court may dispose of an appeal which includes dismissing it
or allowing it by vacating or varying the assessment or referring
the assessment back to the Minister. This Court is confined to
what is expressly conferred on it by Parliament and what is
necessarily implied from what is expressly conferred[1].
[11] Originally, the Appellant perceived it
to be in his best interest to declare the Corporation as the
contractor. He was assessed on that basis. He later realized his
mistake and concluded that he could obtain additional input tax
credits if he was considered the contractor for part of the
invoices. He gave evidence to support his new position.
[12] This Court does not have the
jurisdiction to grant the requested declaratory order.
[13] The appeal is dismissed.
Signed at Ottawa, Canada, this 11th day of August 1998.
J.T.C.C.
COURT FILE
NO.:
97-1946(GST)I
STYLE OF
CAUSE:
Between David E. Jorstead and
Her Majesty the Queen
PLACE OF
HEARING:
Whitehorse, North West Territories
DATE OF
HEARING:
July 20, 1998
REASONS FOR JUDGMENT BY: the Honourable
Judge C.H. McArthur
DATE OF
JUDGMENT:
August 11, 1998
APPEARANCES:
For the
Appellant:
The Appellant himself
Counsel for the Respondent: John C.
O'Callaghan
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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