Docket: 2011-941(GST)I
BETWEEN:
XIAO LING LI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on August 23, 2011 at Vancouver, British Columbia
Before: The Honourable Justice
Wyman W. Webb
Appearances:
|
For the Appellant:
|
The
Appellant Herself
|
|
Counsel for the Respondent:
|
Holly Popenia
|
____________________________________________________________________
ORDER
The Respondent's motion to quash the
Appellant's appeal filed on April 1, 2011 in relation to the assessment issued
under the Excise Tax Act dated January 31, 2011 is allowed and this
appeal is quashed, without costs.
Signed at Winnipeg, Manitoba, this 7th day of September
2011.
“Wyman W. Webb”
Citation: 2011TCC416
Date: 20110907
Docket: 2011-941(GST)I
BETWEEN:
XIAO LING LI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb, J.
[1]
Prior to the
commencement of the hearing of the Appellant's appeal, the Respondent brought a
motion to quash the Appellant's appeal on the basis that the Appellant had not
filed a notice of objection to the assessment that the Appellant was attempting
to appeal. The Appellant was assessed for goods and services tax (GST) for the
period from January 1, 2005 to December 31, 2007 by a notice of assessment
dated January 31, 2011. On April 1, 2011 the Appellant filed a Notice of Appeal
to this Court in relation to this assessment. The Appellant acknowledged that
she did not file a notice of objection to this assessment prior to filing the
notice of appeal to this Court.
[2]
Subsections 301(1.1), (3) and (4)
and sections 302 and 306 of the Excise Tax Act ("Act") provide as follows:
(1.1) Any
person who has been assessed and who objects to the assessment may, within
ninety days after the day notice of the assessment is sent to the person, file
with the Minister a notice of objection in the prescribed form and manner
setting out the reasons for the objection and all relevant facts.
…
(3) On
receipt of a notice of objection, the Minister shall, with all due dispatch,
reconsider the assessment and vacate or confirm the assessment or make a
reassessment.
(4) Where,
in a notice of objection, a person who wishes to appeal directly to the Tax
Court requests the Minister not to reconsider the assessment objected to, the
Minister may confirm the assessment without reconsideration.
…
302. Where a person files a notice of objection to an assessment and the
Minister sends to the person a notice of a reassessment or an additional
assessment, in respect of any matter dealt with in the notice of objection, the
person may, within ninety days after the day the notice of reassessment or
additional assessment was sent by the Minister,
(a) appeal therefrom to the Tax Court; or
(b) where an appeal has already been instituted in respect of the matter,
amend the appeal by joining thereto an appeal in respect of the reassessment or
additional assessment in such manner and on such terms as the Tax Court
directs.
…
306. A person who has filed a notice of objection to an assessment under
this Subdivision may appeal to the Tax Court to have the assessment vacated or
a reassessment made after either
(a) the Minister has confirmed the assessment or has reassessed, or
(b) one hundred and eighty days have elapsed after the filing of the
notice of objection and the Minister has not notified the person that the
Minister has vacated or confirmed the assessment or has reassessed,
but no appeal under this section may be instituted after the expiration
of ninety days after the day notice is sent to the person under section 301
that the Minister has confirmed the assessment or has reassessed.
[3]
Both sections 302 and 306 include
a prerequisite that a person must have filed a notice of objection to an
assessment before the person may appeal the assessment to this Court. It is
also clear that the notice of objection is filed with respect to a particular
assessment. The Appellant had argued that a notice of objection had previously
been filed in relation to another assessment that, although it is not entirely
clear, may be for the same GST for which the Appellant was assessed on January
31, 2011. The Appellant stated that the GST assessed was in relation to a
business that the Appellant stated was her former spouse’s business, although
this issue is not raised in her notice of appeal.
[4]
It is clear that the
Appellant had not filed any notice of objection to the assessment dated January
31, 2011 (which was the first assessment for this GST issued in the name of the
Appellant) prior to filing her notice of appeal to this Court in relation to
this assessment. As a result the condition precedent to filing an appeal to
this Court from this assessment had not been satisfied and her appeal is
quashed.
[5]
Following the filing of
the notice of appeal the Appellant did file a notice of objection to this
assessment on or about June 6, 2011. A Notice of Confirmation in relation to
this notice of objection was sent on July 26, 2011 and therefore the Appellant
is still within the 90 day period from the date of this confirmation to appeal
this assessment to this Court as provided in section 306 of the Act.
However the Appellant will need to file a new Notice of Appeal.
[6]
The Respondent's motion
to quash the Appellant's appeal filed on April 1, 2011 in relation to the
assessment issued under the Excise Tax Act dated January 31, 2011 is
allowed and this appeal is quashed, without costs.
Signed at Winnipeg, Manitoba, this 7th day of September 2011.
“Wyman W. Webb”
CITATION: 2011TCC416
COURT FILE NO.: 2011-941(GST)I
STYLE OF CAUSE: XIAO LING LI AND THE QUEEN
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 23, 2011
REASONS FOR ORDER
BY: The Honourable Justice Wyman W. Webb
DATE OF ORDER: September 7, 2011
APPEARANCES:
|
For the
Appellant:
|
The Appellant Herself
|
|
Counsel for the
Respondent:
|
Holly Popenia
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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