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Docket: 2002-577(IT)I
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BETWEEN:
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TERENCE W. BUTTLE,
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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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____________________________________________________________________
Motion heard on March 25, 2003, at Kingston,
Ontario, by
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the Honourable Judge Campbell J. Miller
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Appearances:
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For the Appellant:
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The Appellant himself
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Counsel for the Respondent:
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Rosemary Fincham
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____________________________________________________________________
ORDER
UPON
motion by the Respondent for an Order pursuant to Rule 12
of the Tax Court of Canada Rules (General Procedure),
abridging the time prescribed by Rule 67(6) for the filing
and service of the Notice of Motion, quashing the appeal pursuant
to Rule 58(3) of the Rules; and in the alternative,
granting the Respondent an extension of time to file a Reply to
Notice of Appeal;
AND UPON reading the amended affidavit of David Young;
AND
UPON hearing what was alleged by the parties;
IT IS
HEREBY ORDERED THAT:
1. The Respondent shall have 45
days from the date of this Order to file a Reply to the Notice
Appeal; and
2. The appeal is limited to the
determination of the goods and services tax credit.
Signed at Ottawa, Canada, this 3rd day of April, 2003.
J.T.C.C.
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Citation: 2003TCC204
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Date: 20030403
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Docket: 2002-577(IT)I
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BETWEEN:
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TERENCE W. BUTTLE,
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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 ORDER
Miller J.
[1] The Respondent brings a motion for
an Order:
(i) Pursuant to Rule 12
of the Tax Court Rules, abridging the time prescribed by Rule
67(6) for the filing and service of the Notice of Motion together
with the Affidavit; and
(ii) pursuant to Rule 58(3)
of the Tax Court Rules, quashing the Appellant's appeal;
(iii) in the alternative, granting
the Respondent an extension of time to file his Reply to Notice
of Appeal to 45 days from the date of the judgment on the present
motion.
[2] The grounds for the motion given
by the Respondent are that:
(a) the Minister of National
Revenue (the Minister) issued a Notice of Assessment dated April
26, 2001 in regard to the 2000 taxation year of the
Appellant;
(b) the Notice of Assessment
referred to in subparagraph (a) herein resulted in the assessment
of nil federal and provincial tax;
(c) in the assessment of
April 26, 2001, the Minister reduced the Ontario Tax Credit (OTC)
claimed by the Appellant from $827.74 to $273.74;
(d) the OTC is a credit against
Ontario tax and is granted under subsection 8(3) of the
Ontario Income Tax Act;
(e) the Minister issued a
Notice of Redetermination dated August 10, 2001 with respect to
the Goods and Services Tax Credit for the 2000 taxation year;
(f) the Appellant did not
file a Notice of Objection to the Notice of Redetermination
indicated in subparagraph (e) herein as required by subsection
165(1) of the Income Tax Act (the Act);
(g) the Tax Court of Canada
has no jurisdiction to hear the Appellant's appeal when there
is no tax in dispute; and
(h) the Notice of Appeal
filed December 28, 2001 in regard to the 2000 taxation year is
not valid as the Appellant has not filed a Notice of Objection
with respect to the Notice of Redetermination referred to in
subparagraph (e) as required by subsection 169(1) of the
Act.
[3] The following facts are also
relevant:
(i) In the April 26, 2001 assessment
notice, Canada Customs and Revenue Agency (CCRA ) wrote:
In July, we will let you know the goods and services
tax/harmonized sales tax (GST/HST) credit ...
(ii) Mr. Buttle filed an objection on a
timely basis to that notice;
(iii) the "Notice of Redetermination"
of August 10, 2001, stated:
We have determined that you are not eligible to receive the
GST/HST credit because your net family income exceeds
$35,220.
This letter is not titled a "Notice of
Redetermination", nor does it anywhere indicate that Mr.
Buttle must file an objection if he disagrees;
(iv) On October 1, 2001, the Minister sent Mr.
Buttle a Notice of Confirmation confirming the April
assessment;
(v) The Appellant filed an appeal of that
confirmation on a timely basis.
[4] At the hearing of the motion, it
was clear that Mr. Buttle appreciated that this Court did not
have jurisdiction on the issue of Ontario credits. It was also
clear that he had objected from the outset to the
Respondent's finding that his income, combined with his
wife's, exceeded $35,220, as this resulted in the denial of
the GST credit. The GST credit was always at issue.
[5] I believe we got somewhat
sidetracked at the hearing over a perceived procedural default in
that Mr. Buttle did not file a formal objection to what the
Respondent called the Notice of Redetermination. I have
considered this position and have concluded that the
correspondence of August 10, 2001, was not a notice requiring a
response by way of a Notice of Objection, but was simply part of
the April assessment, which indicated the GST credit answer would
subsequently be provided to Mr. Buttle. The August 10 letter
simply provided that answer. The Notice of Confirmation in
October confirmed the assessment, which included the denial of
the GST credit. Mr. Buttle has conformed with all procedural
requirements and his appeal validly addresses the issue of the
GST credit. He should have his day in Court to explain why he
believes CCRA have miscalculated his income. For these reasons, I
do not grant the Order to quash but extend time to the Respondent
to file a Reply, limiting the issue to the determination of the
GST credit.
Signed at Ottawa, Canada, this 3rd day of April, 2003.
J.T.C.C.
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