Date: 19980915
Docket: 96-3880-GST-I
BETWEEN:
475830 ALBERTA LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1] This matter came on for hearing at Edmonton, Alberta on
August 12, 1998. At that time, the Court raised the question as
to whether it had any power to hear the appeal based upon the
pleadings. In particular, a Notice of Appeal signed by Francis
Mella of Mella Accounting stated that the Appellant is bankrupt;
this was admitted by the Respondent.
[2] For this reason the matter was adjourned until a telephone
conference on September 14, 1998 in order that the parties could
bring before the Court a record respecting the alleged
bankruptcy. The purported appeal is from a Notice of Decision
confirming an assessment against the Appellant of GST.
[3] Based upon the material filed for the September 14th
hearing, the chronology of the legal position of the Appellant is
as follows:
November 24, 1993 The Appellant is declared bankrupt and a
trustee is appointed by the Alberta Court of Queen's
Bench.
November 30, 1993 The Notice of Decision is issued by the
Minister of National Revenue.
January 10, 1994 The Minister files a Proof of Claim in the
bankruptcy.
March 8, 1994 An Amendment of the Proof of Claim is filed.
May 1, 1995 The Appellant is struck off the Corporate Registry
of Alberta.
May 17, 1995 The Trustee in Bankruptcy is discharged.
September 28, 1996 Francis Mella of Mella Accounting files
this appeal on behalf of the Appellant after obtaining an
extension of time to appeal.
[4] Two further matters must be noted:
(1) The Amended Proof of Claim appears to have been accepted
as filed in the bankruptcy.
(2) The Appellant is not discharged from bankruptcy.
[5] There are two reasons for dismissing this appeal based
upon the foregoing:
(1) Francis Mella has no right to bring an appeal for the
Appellant. That remains the responsibility of the trustee. (See
subsection 71(2) of the Bankruptcy and Insolvency Act and
Alsask Farm & Ranch Supply Ltd. v. Texaco Canada Ltd.
(1989) 74 C.B.R. 73
(2) The assessment and Notice of Decision were dealt with in
the bankruptcy by virtue of the Proof of Claim and Amended Proof
of Claim filed in the bankruptcy. They could have been disputed
in the bankruptcy process.
[6] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada this 15th day of September 1998.
"D.W. Beaubier"
J.T.C.C.
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