Docket: 2006-2538(IT)I
BETWEEN:
EDNA M. MCKIM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion heard on June 11, 2007 at Kingston, Ontario.
Before: The Honourable
Justice Wyman W. Webb
Appearances:
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For the Appellant:
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The
Appellant herself
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Counsel for the Respondent:
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Richard Gobeil
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____________________________________________________________________
ORDER
The
Motion by the Respondent is allowed and the appeal filed by the Appellant is dismissed.
The
Appellant is entitled to costs of $100 in the event that the filing fee of $100
is not returned to her.
Signed at Ottawa, Ontario, this 14th
day of June 2007.
"Wyman W. Webb"
Citation: 2007TCC351
Date: 20070618
Docket: 2006-2538(IT)I
BETWEEN:
EDNA M. MCKIM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The
Appellant filed an appeal to the Tax Court of Canada. The only issue in the appeal
is whether the Appellant should be assessed and taxed as a resident of the
province of Newfoundland and Labrador or as a resident of the province of Ontario. The Respondent has
made a motion that the appeal should be dismissed on the basis that the Tax
Court of Canada does not have the jurisdiction to deal with this issue.
[2]
In Gardner v. The Queen, 2001FCA401, the
Federal Court of Appeal determined that the Tax Court of Canada did not have
the jurisdiction to deal with the issue of whether a particular person was
resident in the province of Ontario. The Federal Court of Appeal referred to the following
sections of the Ontario Income Tax Act (as set out in this decision):
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4. (1) in
this section,
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"income earned in the taxation year in Ontario"
means the amount of income that would be determined to be earned in the year
in Ontario for the purposes of determining the amount of income earned in the
year in a province under section 120 of the Federal Act; ...
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"tax payable under the Federal Act" means the
amount that, but for section 120 of the Federal Act, would be the tax payable
by an individual under Part I of that Act for the taxation year in respect of
which the expression is being applied, computed as if the individual were not
entitled to a deduction under section 126, 127, 127.2, 127.4 or 127.41 of
that Act.
...
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23. (1) A taxpayer who has served a notice of objection
to an assessment under subsection 165(1) of the Federal Act, as it applies
for the purposes of this Act, may appeal to the Ontario Court (General
Division) to have the assessment vacated of varied after either,
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(a) the Provincial Minister has confirmed the assessment
or reassessed; or
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(b) ninety days have elapsed after service of the notice
of objection and the Provincial Minister has not notified the taxpayer that
the Provincial Minister has vacated or confirmed the assessment or
reassessed,
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but no appeal under this section may be instituted after
the expiration of ninety days [from] the day notice has been mailed to
the taxpayer in accordance with subsection 165(3) of the Federal Act, as it
applies for the purposes of this Act, that the Provincial Minister has
confirmed the assessment or reassessed.
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(2) In the course of disposing of an appeal from an
assessment under this Act, the Court may make a determination in respect of
any question relating to,
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(a) the residence of a taxpayer for the purposes of the
Act; ...
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(b) the amount of income of a taxpayer earned in a
taxation year is Ontario for the purposes of section 4;
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(c) the amount of tax payable by a taxpayer for a
taxation year, based on the amount of tax payable under the Federal Act for
that year as defined in section 4;
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[3]
In
this particular case the provincial statute that is in issue is the Income Tax
Act 2000 of the province of Newfoundland and Labrador. Section 62 of that Act
provides as follows:
(1) Section 169 of the federal Act
applies for the purpose of this Act.
(2) An appeal from an assessment
under this Act may be taken in respect of a question relating,
(a) in the case of an individual,
to the determination of
(i) his or her
residence for the purposes of this Act,
(ii) his or her
income earned in the taxation year in the province as defined in paragraph
5(c),
(iii) the amount of
tax payable for a taxation year based on the tax payable under the federal Act
for that year as defined in paragraph 5(g), or
(iv) the amount of
his or her adjusted income for the purpose of section 34 of this Act as
determined under the definition "adjusted income" in
subsection 112.5(1) of the federal Act; and
. . .
but an appeal from an assessment does not
lie in respect of the computation of the tax payable under the federal Act as
defined in paragraph 5(g) or of the taxable income of a corporation.
(3) An appeal to the court shall
be instituted by serving upon the minister a notice of appeal in duplicate in
prescribed form and by filing a copy of it with the registrar of the court.
In subsection 2(1) of the Income Tax Act 2000
of the province of Newfoundland and Labrador, "court" is defined
as the Trial Division of the Supreme Court.
[4]
While
the Income Tax Act 2000 of the province of Newfoundland and Labrador is
not as clear as the Income Tax Act of the province of Ontario in dealing
with the rights of appeal, in my opinion the provisions of section 62 of the Income
Tax Act 2000 of the province of Newfoundland and Labrador still restrict
the right of appeal, as it relates to the question of whether or not a
particular individual is resident in the province of Newfoundland and Labrador
for the purposes of the provincial Income Tax Act 2000, to the courts of
the province of Newfoundland and Labrador.
[5]
Subsection
62(1) of the Income Tax Act 2000 of the province of Newfoundland and Labrador does provide that
section 169 of the federal Act applies for the purposes of this Act.
Subsection 169(1) of the federal Income Tax Act provides as
follows:
Where a taxpayer has served notice of objection to an
assessment under section 165, the taxpayer may appeal to the Tax Court of
Canada to have the assessment vacated or varied ...
[6]
This subsection is not
made subject to subsections (2) and (3) and therefore would suggest that an
appeal would lie to the Tax Court of Canada in relation to any issue arising
under the Income Tax Act 2000 for the province of Newfoundland and Labrador. However, because "court" is
defined in the Income Tax Act 2000 for the province of Newfoundland and
Labrador as the Trial Division of the Supreme Court of the province of
Newfoundland and Labrador and subsection 62(3) specifically provides an appeal
to the court (which would mean the Trial Division of the Supreme Court of
Newfoundland and Labrador) this must mean that appeals in relation to the
issues defined in subsection 62(2) of the provincial statute would lie to the
Trial Division of the Supreme Court of province of Newfoundland and
Labrador. If all appeals of any matter related to the Income Tax Act 2000
for the province of Newfoundland and Labrador were to lie
to the Tax Court of Canada, why were subsections 62(2) and (3) added to the Income
Tax Act 2000 for the province of Newfoundland and Labrador?
[7]
It
seems clear from the provincial statute that appeals do lie to the Trial Division of the Supreme Court of the
province of Newfoundland and Labrador. To conclude that appeals would also lie to the Tax Court of
Canada for the same issues that could be appealed to the Trial Division of the Supreme Court of
Newfoundland and Labrador would result in an unusual
situation where two courts would have overlapping jurisdiction. In my opinion this
is not the intended result of the provisions of section 62 of the Income Tax
Act 2000 of the province of Newfoundland and Labrador and therefore,
in my opinion, the rights of appeal on the matters listed in subsection 62(2)
of the Income Tax Act 2000 of the province of Newfoundland and
Labrador lie exclusively to the Trial
Division of the Supreme Court of the province of Newfoundland and Labrador.
[8]
Since
a determination of whether a particular individual is resident within the
province of Newfoundland and Labrador is one of the matters listed in subsection 62(2), in my
opinion, an appeal of this matter lies exclusively to the Trial Division of the Supreme Court of the
province of Newfoundland and Labrador.
[9]
As a
result, the Crown's motion is granted and the Appellant’s appeal is dismissed
on the basis that this Court does not have the jurisdiction to determine
whether the Appellant is a resident of the Province of Newfoundland and Labrador or
the jurisdiction to determine whether the Appellant is a resident of the Province of Ontario.
[10]
However,
since the Appellant in this case had received correspondence indicating that if
she wished to appeal that her appeal would be to the Tax Court of Canada, the
Appellant should be entitled to receive a refund of her filing fee of $100. In
the event that this is not refunded then the Appellant should be entitled to
costs of $100.
Signed at Ottawa, Ontario, this 14th day of June 2007.
"Wyman W. Webb"
CITATION: 2007TCC351
COURT FILE NO.: 2006-2538(IT)I
STYLE OF CAUSE: EDNA M. MCKIM AND THE QUEEN
PLACE OF HEARING: Kingston,
Ontario
DATE OF HEARING: June 11, 2007
REASONS FOR
JUDGEMENT BY: The Honourable Justice Wyman W. Webb
DATE OF JUDGMENT: June 14, 2007
APPEARANCES:
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For the
Appellant:
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The Appellant herself
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Counsel for the
Respondent:
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Richard Gobeil
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COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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