[OFFICIAL ENGLISH TRANSLATION]
Date: 20020903
Docket: 2000-5118(IT)I
BETWEEN:
CLÉMENT GIRARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal concerning the
1998 and 1999 taxation years.
[2] The point for determination is
whether the Minister of National Revenue (the
"Minister") was correct in allowing the appellant only
the amounts of $1,507 and $835 in respect of charitable donations
in computing his non-refundable tax credits for the 1998 and 1999
taxation years respectively.
[3] In making and confirming the
assessments at issue, the Minister assumed the following
facts:
[TRANSLATION]
(a) the appellant is
a priest and, as a parish priest, is in charge of the parish of
St-Jean-Vianney in the Saguenay;
(b) in that parish,
there is a charity, the
"St-Vincent-de-Paul Society", which
is run by the Saint-Jean-Vianney parish council;
(c) as the parish
priest, the appellant is the person authorized to sign the
charitable receipts issued either by the St-Vincent-de-Paul
Society or by the Saint-Jean-Vianney parish council;
(d) the appellant
made gifts to members of his family, that is,
Claudette Tremblay and her spouse, through the
St-Vincent-de-Paul organization;
(e) the gifts were
intended for a particular family, that of the appellant's
cousin;
(f) the
appellant deposited sums of money directly to his cousin's
bank account after withdrawing them from his personal account and
transferring them to the account of the St-Vincent-de-Paul
Society;
(g) the appellant
also used those funds to repay the debts of Ms. Tremblay and
her spouse to the Quebec Ministère du Revenu, and the
certified cheques payable to the Quebec Ministère du
Revenu were signed by the appellant;
(h) an amount of
$2,950 was carried over to 1998 in respect of charitable
donations from 1997, and an amount of $7,497 was carried over to
1999 in respect of charitable donations from 1998;
(i) the
Minister refused to include the carry-over of those charitable
donations from previous years in computing the appellant's
non-refundable tax credits because the amounts in issue were not
substantiated;
(j) the
charitable donations eligible for a tax credit for the 1998
taxation year are:
Priests of
Sacré-Coeur
$100.00
Priests of
Sacré-Coeur
$145.00
Priests of
Sacré-Coeur
$145.00
Priests of
Sacré-Coeur
$150.00
Priests of
Sacré-Coeur
$380.00
Grand
Séminaire
$100.00
C.E.C.R. de
Chicoutimi
$487.34
Total
allowed
$1,507.34
(k) the charitable
donations eligible for a tax credit for the 1999 taxation year
are:
Priests of
Sacré-Coeur
$275.00
C.E.C.R. de
Chicoutimi
$120.00
C.E.C.R. de
Chicoutimi
$440,00
Total
allowed
$835.00
(l) virtually
all the charitable receipts that the Minister refused to allow as
being eligible for a tax credit were signed by the appellant on
behalf of the Saint-Jean-Vianney parish council;
(m) charitable receipts
establishing the value of the appellant's housing at $4,500
for 1998 and $4,800 for 1999 were signed by an employee of the
Saint-Jean-Vianney parish council;
(n) the appellant
thus included in two places in his income tax returns the amounts
of $4,500 and $4,800 since those amounts appear on the
appellant's T4 slip for each of the years in issue, and he
claimed them as expenses at line 229 of his tax returns in
addition to claiming them as charitable donations in computing
his non-refundable tax credits for the 1998 and 1999 taxation
years.
[4] The appellant explained that he
had provided financial assistance to certain members of his
family. He testified that, before doing so, he had contacted the
Jonquière Taxation Data Centre to verify whether as a
result of such assistance he could issue receipts attesting to
the gifts and, second, obtain the benefits from such gifts under
the Income Tax Act (the "Act"). Since the
person to whom the questions were submitted had answered in the
affirmative, the appellant proceeded as he had proposed to do,
that is, make the gifts and issue the corresponding receipts.
[5] In auditing his case, the person
responsible for the analysis communicated with the church rectory
and made utterly inappropriate, indeed highly cavalier comments
and observations, even questioning the appellant's
honesty.
[6] Shocked, and rightly so, at the
attitude of the respondent's officials, the appellant
wondered what to do to obtain reliable information consistent
with the provisions of the Act and stated that he was
entitled to respect and confidentiality with regard to his
file.
[7] The appellant's submissions in
support of his appeal dealt mainly with the utterly unacceptable
manner in which he had been treated and the fact that he had
obtained inadequate information from the respondent's
officials.
[8] On this point, the appellant is
entirely right in claiming that he is entitled to respect and
confidentiality. It is equally unacceptable that citizens cannot
obtain accurate information when they take the initiative of
checking before conducting a transaction that may have
consequences for their taxable income, particularly where they
ask a simple question in an ordinary field of activity. It is
just as unacceptable that the respondent's officials are
irreverent or insolent in their analysis or investigation.
[9] The Act is so complex that
many taxpayers must request information in order to find their
bearings. The appellant was right to protest the quality of the
information provided by the respondent's officials. However,
does the fact that he obtained information inconsistent with the
statutory provisions make his appeal valid?
[10] The courts have considered similar or
comparable situations on a number of occasions. Certain passages
from the case law submitted by the respondent should be cited.
First, in Donovan v. M.N.R., [1988] T.C.J.
No. 642 (Q.L.), Judge Labelle wrote as follows:
. . .
Unfortunately wrong advice is given but it is the law that
prevails over the errors of employment Commission.
. . .
[11] In Video Adventures Ltd. v.
Canada, [1994] T.C.J. No. 751 (Q.L.), Judge Kempo
held as follows, at paragraph 10:
The Court has a lot of sympathy for Mr. Naugler who, it seems,
was doing his personal best to comply with new and complex
legislation. However, there is a long,
well-established line of authority that mistakes made by fiscal
officials do not drive the law, and that estoppel is subject to
the general rule that it cannot override the law of the land.
[12] In Beal v. Canada, [1995]
T.C.J. No. 1064 (Q.L.), Judge Rip wrote as follows, at
paragraph 16:
That the appellant relied on the advice of the Minister of
National Revenue's ("Minister") officials in
claiming the tax credits does not assist him. The
Minister cannot be bound by advice given by his or her officials
when the conditions prescribed by the law were not met:
...
[13] Lastly, in Chilton v.
Canada, [1994], T.C.J. No. 354 (Q.L.),
Judge Beaubier stated at paragraph 5 of his
judgment:
Unfortunately, this Court does not have the power to do as the
Appellant asks. It has only the power to deal with the
correctness of the assessment.
[14] In the instant case, the Court
understands the appellant's disappointment and bitterness,
particularly at the offensive and unseemly remarks made by the
respondent's official in the course of efforts to check
certain information in his file. There is no doubt in my mind
that the appellant always acted in a fundamentally honest, open
and even highly prudent manner by first ensuring that he could
make the gifts and make use of the benefits.
[15] Although very sympathetic to his
situation, I cannot accept the appellant's arguments since
the Tax Court of Canada essentially has jurisdiction to determine
whether the assessments that form the subject of this appeal were
issued legally and correctly. If so, this Court has no latitude
to vary or vacate the assessments in appeal.
[16] In this case, the evidence is that the
assessments were issued in accordance with the Act.
Consequently, I must dismiss the appeal.
Signed at Ottawa, Canada, this 3rd day of September 2002.
J.T.C.C.
Translation certified true
on this 2nd day of December 2003.
Sophie Debbané, Revisor
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