Docket: 2010-628(IT)I
BETWEEN:
PETER KOSTIUK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Respondent’s Motion heard on November 29,
2010,
at Saskatoon, Saskatchewan
Before: The Honourable
Justice G. A. Sheridan
Appearances:
|
Counsel for the Appellant:
|
D.
Heather Funk
|
|
Counsel for the Respondent:
|
Bryn Frape
|
____________________________________________________________________
ORDER
Upon the Appellant having filed a Notice of Appeal in
respect of a Goods and
Services Tax Credit Notice issued by the
Minister of National Revenue advising that he was entitled to a Goods and
Services Tax Credit in the 2006 year;
And the Respondent having brought a motion for an
order dismissing the Appellant’s Notice of Appeal on the basis that there can
be no appeal from a ‘nil’ assessment;
And having read the materials filed including the Affidavit
of Sandy Slight and the Affidavit of Peter Kostiuk, and having heard the
submissions of counsel;
The Respondent’s motion is granted, without costs, and
the appeal of the 2006 taxation year is dismissed in accordance with the
attached Reasons for Order.
Signed at Ottawa, Canada, this 6th day of December, 2010.
“G. A. Sheridan”
Citation: 2010TCC630
Date: 20101206
Docket: 2010-628(IT)I
BETWEEN:
PETER KOSTIUK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Sheridan, J.
[1]
The Appellant, Peter
Kostiuk, is a 94-year-old gentleman. By Goods and Services Tax Credit Notice issued by the Minister of National Revenue
dated September 4, 2009 (the “GST Credit Notice”) he was advised that he was
entitled to a Goods and Services Tax Credit in the 2006 year of $90.50 for the
specified months of July 2007, October 2007, January 2008 and April 2008. The
basis for the Minister’s redetermination of Mr. Kostiuk’s entitlement to the
GST Credit was that he was “separated” and had a family net income of $24,124.
[2]
Prior to the GST Credit Notice
under appeal, the Minister had issued three other GST credit notices for the
same period: one dated September 7, 2007 advising Mr. Kostiuk that he was not
entitled to a GST Credit because his “spouse” had applied and there could be
only one application per family; another dated November 30, 2007 advising that
he was entitled to a GST Credit because he was “separated” and the family
income level was within the amount allowed; and a third on November 28, 2008
advising, again, that he was not entitled to a GST Credit because his “spouse”
had applied and there could be only one application per family.
[3]
It was against this
background that on October 1, 2009 Mr. Kostiuk objected to the Minister’s redetermination of September 4, 2009 on the basis that
he was “married”, not “separated” as had been determined by the Minister. For
reasons not known to this Court, the Minister maintained his position that Mr.
Kostiuk was “separated” and confirmed the redetermination in respect of the GST
Credit Notice.
[4]
It is from that
confirmation that Mr. Kostiuk seeks to appeal. He does not dispute that no tax was assessed under the GST Credit Notice; what
he takes issue with is the department’s determination of his marital status as
“separated” when, in fact, he says he is and was at all relevant times “married”.
Mr. Kostiuk’s concern is that should he, in future, file his returns as
“married”, he runs the risk of being constantly reassessed or worse, assessed
penalties for having filed a false return. His purpose in appealing is to avoid
such difficulties by asking this Court to make a final determination of his
marital status.
[5]
The Respondent’s
position is that no tax having been assessed under the GST Credit Notice, it is a ‘nil’ assessment and accordingly, no
appeal lies from it.
[6]
While the legislation itself
makes no reference to that term, it has long been defined in the jurisprudence
to identify an assessment which cannot be appealed: where no tax has been
assessed, there is no “assessment” as that term is used in the legislation and
hence, nothing to appeal. The rationale for this interpretation was explained
by Noël, J.A. in the Federal Court of Appeal decision, Interior Savings
Credit Union v. Her Majesty the Queen[1]:
17 … There
are two reasons why a so-called nil assessment cannot be appealed. First, an
appeal must be directed against an assessment and an assessment which assesses
no tax is not an assessment (see Okalta Oils Limited v. MNR, 55 D.T.C.
1176 (SCC) at p. 1178: “Under these provisions, there is no assessment if there
was not (sic) tax claimed”). Second, there is no right of appeal from a
nil assessment since: “Any other objection but one related to an amount claimed
[as taxes] was lacking the object giving rise to the right of appeal ...” (Okalta
Oils, supra, at p. 1178).
[7]
As Mr. Kostiuk admits that no
tax was payable under the GST Credit Notice, this Court is without authority to
entertain an appeal from it. An additional obstacle for Mr. Kostiuk is that
what he is effectively seeking in his appeal is a declaration of his marital
status, a remedy which, in any event, is beyond the power of this Court to
grant.
[8]
For the reasons set out above,
the Respondent’s motion is granted, without costs, and the appeal is dismissed.
Signed at Ottawa, Canada, this 6th day of December, 2010.
“G. A. Sheridan”
CITATION: 2010TCC630
COURT FILE NO.: 2010-628(IT)I
STYLE OF CAUSE: PETER KOSTIUK AND
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Saskatoon,
Saskatchewan
DATE OF HEARING: November 29, 2010
REASONS FOR ORDER BY: The
Honourable Justice G. A. Sheridan
DATE OF ORDER: December 6, 2010
APPEARANCES:
|
Counsel for the
Appellant:
|
D. Heather Funk
|
|
Counsel for the
Respondent:
|
Bryn Frape
|
COUNSEL OF RECORD:
For the
Appellant:
Name: D. Heather Funk
Firm: Funk’s
Law Office Prof. Corp.
Saskatoon, Saskatchewan
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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