Citation: 2008TCC621
Date: 20081114
Docket: 2008-2448(IT)G
2008-2449(GST)G
BETWEEN:
DALE RANDALL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller, J.
[1]
These are motions
brought by the Respondent for Orders to quash the GST appeal and the income tax
appeal for the 2005 taxation year on the basis that the Appellant did not file
Notices of Objections for these appeals. In the alternative, the Respondent
requests Orders to strike both Notices of Appeal pursuant to paragraph 58(1)(b)
and section 53 of the Tax Court of Canada Rules (General Procedure) (“the
Rules”).
MOTION TO QUASH
(a) GST Appeal
[2]
In support of its
motion to quash the GST appeal, the Respondent relied on the affidavit evidence
of Vincent Ting, a Litigation Officer with the Canada Revenue Agency (“CRA”).
Mr. Ting indicated that on March 21, 2007, the Appellant was assessed GST net
tax of $9,456.39 plus penalty and interest for the periods January 1, 2003 to
December 31, 2005. The CRA received a letter on
June 18, 2007 from
the Appellant in which the Appellant requested information about the
reactivation of his GST number. The CRA concluded that this letter was not a
Notice of Objection. The Appellant sent another letter dated December 27, 2007
to the CRA in which he referred to an alleged accounting error made by the CRA.
This letter did not mention GST. The CRA concluded that this letter as well was
not a Notice of Objection. Both of these letters were attached as exhibits to
the affidavit.
[3]
It is the Respondent’s
position that neither letter met the statutory requirements under section 301
of the Excise Tax Act (“the ETA”). There is no mention in either letter
that the Appellant disputed whether the amount assessed was correct in terms of
the ETA. The relevant parts of section 301 read as follows:
(1.1) Objection to assessment -- 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.
(2) Acceptance
of objection -- The Minister may accept a notice of objection
notwithstanding that it was not filed in the prescribed manner.
[4]
If a valid Notice of
Objection was filed then it would be the letter received June 18 as it was
filed with the Minister within ninety days after the day the notice of
assessment was sent. I note that there is no a prescribed form for a notice of
objection as referenced in subsection 301(1.1). The letter is signed by a
social insurance number and refers to the CRA basing its decision on
information concerning “a human being Dale Randall”. There was a profit/loss
statement attached to the letter when it was sent to the CRA but it was not
attached to the exhibit in the affidavit.
[5]
The Appellant stated
that his letters were valid Notices of Objection. He relied on the decision of
Judge Sobier in Wichartz v. Canada[1]
to assert that the CRA has adopted a policy where any mention of a wish to
dispute an assessment is considered a valid objection.
[6]
Obviously the CRA has
not adopted the policy the Appellant has attributed to it as his letter was not
accepted as a valid notice of objection. In Wichartz, the Appellant had
filed a letter with Revenue Canada which was not accepted as a Notice of
Objection. Judge Sobier found that in the letter the Appellant was objecting to
the assessment of penalties and interest. He dismissed the Respondent’s motion
to quash the appeal.
[7]
The facts of the
present case are similar to those in Wichartz in that the letter of June
18 is a letter of complaint about the actions of the CRA officials. However, it
is clear on reading the letter that the Appellant is objecting to the fact that
he was reregistered as a GST registrant and that he was assessed for GST. The
Appellant may not have stated his reasons for objecting in terms of the quantum
of the assessment; but, a taxpayer does not have to be as precise in his notice
of objection[2]
as in the Notice of Appeal that he files with the Tax Court of Canada. In the
present case the Appellant wrote a letter to the CRA in which he challenged the
fact that the assessment was made[3].
It is my opinion that he filed a valid notice of objection for the GST
assessment.
[8]
The motion to quash the
GST appeal is dismissed.
(b) Income Tax Appeal – 2005 taxation year
[9]
In support of its
motion to quash the income tax appeal for the 2005 taxation year (“the 2005
appeal”), the Respondent relied on the affidavit evidence of Azmina Hirji, a
Litigation Officer with the Canada Revenue Agency (“CRA”). Mr. Hirji indicated
that on May 10, 2007 the Minister issued a nil assessment to the Appellant for
the 2005 taxation year. On November 20, 2007, the Appellant was reassessed
federal taxes, interest, gross negligence penalty and late filing penalty for
his 2005 taxation year. The CRA received a letter from the Appellant on
December 28, 2007 in which the Appellant stated that he objected to an
assessment. It is not clear from the letter whether the Appellant is referring
to the assessments under the Income Tax Act (the “ITA”) or the ETA. The
CRA concluded that this letter was not a Notice of Objection for the 2005
income tax reassessment. The CRA received another letter on February 11, 2008
from the Appellant. The Appellant wrote that he was under the impression that
he had objected to all three years in issue, that is 2003, 2004 and 2005. The
letter was not accepted as a notice of objection and Mr. Bob Primeau, an
Appeals Officer with the CRA, informed the Appellant by letter dated February
15, 2008 that no objection to the 2005 taxation year was under consideration.
Bob Primeau confirmed that the Appellant had filed a valid notice of objection
for his 2003 and 2004 taxation years.
[10]
I have reviewed the
letter received on February 11, 2008 from the Appellant. It was filed within
the 90 day limitation period specified in subsection 165(1) of the ITA and it
clearly disputes the assessment. The motion to quash the 2005 income tax appeal
is dismissed.
MOTION TO STRIKE
[11]
The grounds for the
motion to strike the Notices of Appeal are:
a)
They do not disclose a
reasonable ground for appeal as they do not challenge the correctness of the
assessment in terms of the ETA or the ITA;
b)
They are scandalous,
frivolous or vexatious or an abuse of process;
c)
The facts alleged in
the Notices of Appeal are irrelevant;
d)
The Appellant cannot
obtain relief in the appeal on the basis of the allegations plead in the
Notices of Appeal;
e)
It is plain and obvious
that the Appellant’s appeals cannot succeed as plead;
f)
The Notices of Appeal
are so defective that they cannot be cured by a simple amendment.
[12]
The Appellant has
written the style of cause for his Notices of Appeal so that the “appellant” is
his “Social Insurance Number” (SIN) and he is the Intervener. In the Notices of
Appeal, the Appellant alleges that there was a contract-for-hire between him,
as the Intervener, and the SIN as the appellant and that he was the agent for
the SIN. He alleges that in 2003, 2004 and 2005 the SIN did not “carry out
economic activity to bring in any monies, while still having a contractual
obligation to compensate the Intervener for acting as its scribe”. The
Appellant then refers to sections of the auditor’s report. He complains that
the reactivation of his GST account was not authorized by the SIN and that his
SIN was not attached to his bank account from which the Minister identified
deposits. Identical facts are stated in both Notices of Appeal. In the last
section of each Notice of Appeal the Appellant complains about the actions of
the CRA.
[13]
The issues raised in
the income tax Notice of Appeal are:
a)
if “the Doctrine of
Necessity” applies.
b)
if the Tax Court is the
court in which this case should be tried, or should it be moved to an
Anglo-Saxon Court of Common Law, so as to not violate the rights of the
Intervener.
c)
if the Federal
Government of Canada owns the Appellant.
d)
if either the Appellant
or the Intervener can be directly taxed by the Federal Government of Canada.
e)
whether the Appellant
has Freedom of Contract.
f)
whether Canada Revenue
Agency did commit both actus reus and mens rea in it’s conduct of this assessment/reassessment.
g)
whether Canada Revenue
Agency can rely on the defense of “honest but mistaken belief since it did not
take reasonable steps to ascertain that the victim was consenting.”
h)
whether Canada Revenue
Agency can force joinder between the Appellant and the Intervener.
i)
whether Canada Revenue
Agency used civil law to maliciously vex either the Appellant or the
Intervener.
j)
whether Canada Revenue
Agency used civil law to defame the name of the Intervener.
k)
whether Canada Revenue
Agency used civil law to do harm to the Intervener, including but not limited
to harming his ability to conduct his financial affairs.
l)
whether the contractual
compensation to be paid to the Intervener by the Appellant is a legitimate
expense.
m)
whether Supreme Court
of Canada guidelines from previous rulings should be considered when assessing
penalties, costs, etc.
n)
whether a contract not
entered into voluntarily is legally binding.
[14]
Similar issues are
raised in the GST Notice of Appeal.
[15]
The test that is
applied before pleadings will be struck is whether, assuming the facts stated
in the pleadings are true, is it “plain and obvious” that the appeal cannot
succeed[4]?
Only if the appeal is certain to fail should the Notice of Appeal be struck[5].
[16]
The question then is whether it is
plain and obvious that the notices of appeal disclose no reasonable grounds for
appeal[6].
[17]
It is my opinion that
the facts in the Notices of Appeal, when taken as proven, do not challenge the
correctness of the assessments. The quantum and computation of the tax is never
questioned. The issues raised in the appeals are matters over which this court
does not have jurisdiction.
[18]
In her argument,
counsel for the Respondent asked that the Notices of Appeal be struck without
leave to amend as they do not contain a cause of action. She relied on McKenzie
v. R.[7] where
Prothonotary Hargrave stated at paragraph 6:
………a statement
of claim should be a readable narrative so that by following it through to its
conclusion both the defendant and the court may understand the plaintiff's
claim. In the absence of such an understandable factual narrative, as is the
case here, the statement of claim should be struck out as vexatious, frivolous,
embarrassing to the Defendant and, overall, an abuse of process.
[19]
The Appellant
anticipated this argument and tendered a document which represented the two
appeals and which he called a readable narrative. In the document he
acknowledged that the Tax Court does not have jurisdiction to grant the relief
he seeks. He states that the appropriate court is an Anglo-Saxon court of
common law. Part of the relief that he seeks is for the court to instruct the
CRA to treat the two entities (the SIN and the human being) as two entities.
The rewritten notices of appeal reinforce my decision that the appeals should
be struck as they are vexatious, frivolous and an abuse of process.
[20]
The motions are granted
and the appeals 2008-2449(GST)G and 2008-2448(IT)G are struck without leave to
amend. The Respondent is granted her cost in the amount of $820.
Signed at Ottawa, Canada, this 14th day of November 2008.
“V.A. Miller”
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