Marchand c. La Reine, 2004 TCC 205 (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

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Motion heard on February 25, 2004, at Montréal, Quebec,

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ORDER

          Upon motion of the Respondent for dismissal of the appeal for the 2001 taxation year on the ground that this Court does not have jurisdiction in that the appeal does not involve the assessment at issue, but rather the fact that the Minister of National Revenue credited a tax refund and an income tax instalment to a balance owing for previous years;

          Upon reading the affidavit of Marie-Andrée Legault, filed;

          And upon hearing what was alleged by the parties;

          The motion is granted and the appeal is dismissed according to the attached Reasons for Order.

Signed at Ottawa, Canada, this 15^th day of April 2004.

Bédard J.

Translation certified true

on this 19^th day of August 2004

Sharon Winkler Moren, Translator

REASONS FOR ORDER

Bédard J.

[1]      This is a motion to dismiss an appeal. The Minister of National Revenue (the "Minister") argued that the Court has no jurisdiction to hear Marguerite Marchand's appeal because it does not involve the assessment at issue, but rather the fact that the Minister credited a tax refund and an income tax instalment to a balance Ms. Marchand owed for previous taxation years.

The facts

[2]      On April 30, 2002, Ms. Marchand filed an income tax return for the 2001 taxation year. She requested a refund of $495.18.

[3]      On June 10, 2002, the Minister initially assessed Ms. Marchand for the 2001 taxation year in accordance with the income she declared. This assessment granted Ms. Marchand a refund of $495.18.

[4]      The Minister applied a portion of the June 15, 2001, instalment paid by Ms. Marchand to taxes owing for the 1992 and 1998 taxation years. He thus offset an amount of $100.60.

[5]      The Minister also applied a portion of the 2001 refund to taxes owing for the 1992 taxation year, an amount of $192.72.

[6]      On January 2, 2003, the Minister reassessed Ms. Marchand, modifying the pension adjustment factor alone from $7,417 to $7,633 in accordance with the T4 slip the employer produced for the latter. This reassessment did not modify the taxes to be paid for the 2001 taxation year.

[7]      On April 30, 2003, Ms. Marchand objected to the reassessment. On September 22, 2003, the Minister confirmed the January 2, 2003 assessment.

[8]      The tax balance for the 1992 taxation year was payable because Ms. Marchand's appeal had been dismissed for the 1992 taxation year by this court (94-7418(IT)I) as well as by the Federal Court of Appeal (A-257-95).

[9]      The tax balance for the 1998 taxation year was also payable because Ms. Marchand did not object to the assessment within the time limit set out by the Income Tax Act (the "Act").

[10]     The Appellant argued that the Minister could not offset her debts for the 1992 and 1998 taxation years from the $495.18 that she was owed for the reason that these debts were fictitious and extinguished. She also argued that a portion of these debts was due to an error made by Customs and Revenue Agency software and the Agency's incompetence.

Conclusion

[11]     I am of the opinion that Ms. Marchand's appeal for the 2001 taxation year must be dismissed regardless of the well-foundedness of the reason she claimed in support of her appeal. In fact, I must so conclude because this court simply does not have jurisdiction to hear this appeal, since it is not the assessment itself that is contested but the fact that the Minister recovered a balance owing for previous years from a refund issued for the 2001 taxation year and, on the other hand, a portion from the June 2001 instalment.

[12]     In fact, section 12 of the Tax Court of Canada Act and section 171 of the Act, which set out the powers conferred on the justices of the Tax Court of Canada, do not authorize me to hear an appeal of this nature. It should also be recalled that the word "assessment" designates the actual amount of the tax for which a taxpayer is liable and that, if no tax amount is claimed, as in the case at bar, there is no assessment and as a result, no right to appeal.

Signed at Ottawa, Canada, this 15^th day of April 2004.

Bédard J.

Translation certified true

on this 19^th day of August 2004.

Sharon Winkler Moren, Translator