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Citation: 2003TCC111
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Date: 20030317
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Docket: 2002-1384(GST)I
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BETWEEN:
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THOMAS SCAPILLATO,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Bonner, T.C.J.
[1] This is an appeal from an
assessment under Part IX of the Excise Tax Act (the
"Act"). The Minister of National Revenue (the
"Minister") refused the Appellant's application for
a rebate of GST paid by the Appellant in respect of the supply of
a motor home. He did so on the basis that the application was
filed late. The principal issue is whether the application for
the rebate was filed within the one-year period following export
of the property to which the rebate applied as required by s.
252.2 of the Act.
[2] The applicable statutory
provisions are:
252. (1) - Where a non-resident person is the recipient
of a supply of tangible personal property acquired by the person
for use primarily outside Canada, other than
...
and the person exports the property within sixty days after it
is delivered to the person, the Minister shall, subject to
section 252.2, pay a rebate to the person equal to the tax
paid by the person in respect of the supply.
252.2 - A rebate shall not be paid under section 252 or
subsection 252.1(2) or (3) to a person unless
(a) the person files
an application for the rebate within one year after
(i) in the
case of a rebate under subsection 252(1), the day the person
exports the property to which the rebate relates,
...
123. (1) - In section 121, this Part and
Schedules V to X,
"export" means export from Canada;
[3] In January of 1999 the Appellant,
a non-resident, entered into an agreement to purchase a motor
home from a dealer in British Columbia. It was the
Appellant's intention to take the vehicle to Arizona and to
live in it there. The Appellant took delivery of the vehicle in
April of 1999. He drove it from Alberta into Montana on April 20,
1999 with the intention, I infer, of bringing it to Arizona,
keeping it in the United States and using it there indefinitely.
At the time the Appellant was using dealer registration plates.
The Appellant applied to register the vehicle in Montana.
[4] The vehicle remained in the United
States until September of 1999 when the Appellant encountered
problems with the United States Customs Service
("customs"). He was informed by customs that he must
remove the vehicle from the United States unless he could
establish that the vehicle complied with certain United States
regulations. He was threatened with forfeiture of the vehicle if
he failed to do one or the other. This led the Appellant to bring
the vehicle back from the United States to Canada and to store it
in this country until February 2000 when customs finally
issued a consent to the importation of the vehicle into the
United States. The vehicle was then returned to the United States
and registration was issued there on November 22, 2000.
[5] On December 23, 2000 the Appellant
mailed to the Minister a form of Application for Visitor Tax
Refund. The document was received by the Minister on January 4,
2001.
[6] The assessment was made on the
basis that:
(a) The Appellant exported the
vehicle when he drove it into Montana on April 20, 1999,
(b) The Appellant's application
for the rebate was filed after the expiry of the one-year
limitation period laid down by s. 232.2(a) of the
Act.
[7] The meaning of the word export was
considered by the Supreme Court of Canada in Carling Export
Brewing and Malting Co., [1930] S.C.R. 361 and the following
was adopted:
... Generally speaking, export, no doubt, involves the idea of
a severance of goods from the mass of things belonging to this
country with the intention of uniting them with the mass of
things belonging to some foreign country. It also involves the
idea of transporting the thing exported beyond the boundaries of
this country with the intention of effecting that.
The concept of uniting the goods with the mass of things
belonging to a foreign country has given rise to difficulties in
some fact situations.[1] Here however the evidence suggests that when the
Appellant drove the vehicle from Alberta into the United States
he did so with the intention of keeping and using it in that
country. Nothing in the evidence suggests otherwise.
[8] The Appellant's position is
that he did not export the vehicle from Canada before February
2000 when the vehicle was cleared by customs and was returned to
the United States. He seems to suggest that customs clearance at
least was a prerequisite to export from Canada if not both
clearance and registration. He points out that the vehicle was
not registered in the United States until November 2000. He
relies on a pamphlet published by Revenue Canada (now the CCRA)
entitled "Tax Refund for Visitors to Canada". The
pamphlet states: "If you bought a vehicle you must provide
(with the rebate application) the original bill of sale,
documentation proving that the vehicle was exported, and a copy
of the vehicle's registration in your own country".
Clearly, in April 1999 the Appellant was unable to produce more
than a bill of sale. He did not then have either customs
clearance or a United States motor vehicle registration.
[9] The Appellant argues that the
pamphlet is "the applicable document" governing the
rebate issue. In my opinion it is pointless to consider whether
the Minister, in assessing on the basis that the vehicle was
exported in April 1999, has adopted an interpretation of the word
"export" which is inconsistent with what may be
inferred from the evidentiary requirements set out in his own
pamphlet. The Court is obliged to decide the case in accordance
with the statute, properly interpreted, and not in accordance
with representations as to the state of the law whether expressed
or implied in a document published by one of the parties.
Moreover the pamphlet is clear that goods must be removed from
Canada within 60 days of delivery to the visitor in order to
qualify for the refund.
[10] The Appellant can succeed only if the
property to which the rebate applies may be exported for purposes
of s. 252(1) on one day and exported for purposes of
s. 252.2 on another (later) day. Unfortunately the statute
cannot be so construed. Section 252 is designed to offer tax
relief to non-residents who export the property promptly after
the supply in respect of which tax is imposed. The s. 252(1)
sixty-day export rule is intended to discourage protracted use
and enjoyment in Canada of property which will be tax-free. The
s. 252.2 one-year rule is designed to bring about relatively
prompt submission of rebate claims. These sections contemplate a
sequence, supply, then export and then rebate application. To
construe s. 252.2 as applicable to any export other than
that which establishes compliance with the sixty-day rule would
defeat the purpose underlying the s. 252.2 limitation by the
introduction into the sequence of an export event that is of no
relevance.
[11] In my view the vehicle was exported on
April 20, 1999 as found by the Minister. The application was not
filed for more than a year after that date and the s. 252.2
prohibition therefore applies. Accordingly, the appeal must be
dismissed.
Signed at Toronto, Ontario, this 17th day of March 2003.
T.C.J.
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