Gallinger v. The Queen, 2004 TCC 622 (Informal Procedure)

2003-1889(GST)I

BETWEEN:

DONALD E. GALLINGER,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on July 12 and August 30, 2004, at Regina, Saskatchewan, by

the Honourable Justice D. W. Beaubier

Appearances

For the Appellant:                                The Appellant himself

Counsel for the Respondent:                Dhara Drew

JUDGMENT

          The appeal from the reassessment made under the Excise Tax Act, notice of which is dated January 8, 2003 and bears number 02178022312370002 is dismissed.

Signed at Vancouver, British Columbia, this 16th day of September, 2004.

Beaubier, J.

REASONS FOR JUDGMENT

(delivered orally from the Bench at

Regina, Saskatchewan, on August 30, 2004)

[1]      This appeal was heard at Regina, Saskatchewan, on July 12 and on August 30, 2004. Mr. Gallinger, the Appellant, was the only witness. It is an appeal respecting a homeowner's rebate pursuant to Section 256 of the Excise Tax Act, and the timing of the dates involved is crucial.

[2]      Mr. Gallinger testified, and the house was finished in his view on or about December 10, 1998. On December 21, 1998, the inspection of the premises by the inspector from the City of Weyburn was completed and a copy of the report is filed as Exhibit R-1. That report states that the teleposts to the beam are not completed. That is a crucial matter for the construction of any building or structure. There is no subsequent report and there is no evidence as to when they were completed or installed except that the witness stated that it was sometime after that.

[3]      At the hearing on July 12, 2004 I said to Mr. Gallinger that there was no way that I could find him successful unless he brought in an occupancy permit that would support some of his case. On August 30 he brought in not only Exhibit R-1 but Exhibit A-1, the occupancy permit which was dated July 12, 2004 the very day we had the hearing in Regina.

[4]      It is obvious that the reason that the City of Weyburn did not issue the occupancy permit that it should have issued before occupancy occured is because of the teleposts. They are essential before anyone is allowed to go into and occupy a structure.

[5]      The result is that on the evidence before me I find that the Appellants were merely sojourning in the premises. It was not fit for occupancy until those teleposts were in place to support that beam. As a consequence, I find that they were sojourning until they got the occupancy permit on July 12, 2004.

[6]      Therefore, I find that the proper completion and occupancy of that premises according to the evidence before me did not occur until July 12, 2004.

[7]      Section 256(3) of the Excise Tax Act says:

A rebate under this section in respect of a residential complex shall not be paid to an individual unless the individual files an application for the rebate within two years after the earliest of

(a) the day that is two years after the day the complex is first occupied as described in subparagraph (2)(d)(i),

(a.1) the day ownership is transferred as described in subparagraph 2(d)(i),

(b) the day construction or substantial renovation of the complex is substantially completed.

On all of those counts I find that the day that occupancy occurred that is in evidence before me is July 12, 2004. The application according to the subsection I read must be made within two years after the earliest of those dates, and the dates in evidence in this court are both July 12, 2004. The date that is not in evidence, is the day that ownership was transferred.

[8]      On that finding, appeal is dismissed.

[9]      The appeal is dismissed because the Appellant must apply after July 12, 2004. The only application I have is made before that date. He must make a new application.

Signed at Vancouver, British Columbia, this 16th day of September, 2004.

Beaubier, J.