Date: 20030331
Docket: 2000-5062(GST)I
BETWEEN:
HALLMARK POULTRY PROCESSORS LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Agent for the Appellant: Gérald
Melanson
Counsel for the Respondent: Pierre
Séguin
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Montréal, Québec, on December 4,
2001)
McArthur J.
[1] This is an appeal ostensibly by
Hallmark Poultry Processors Limited from an assessment by the
Minister of National Revenue under the Excise Tax Act for
goods and services tax. The Appellant was represented by
Gérald Melanson, a customs specialist with Tower Group
International Inc.
[2] The facts briefly are as follows.
The Tower Group, a brokerage firm, in error paid GST in the
amount of $2,470 upon the import of meat products. It is my
understanding that Tower Group's client was London Foods. The
matter became somewhat confused in that Hallmark, the Appellant,
had the quotas for the chicken and ribs that were imported and
they are noted as the legal party, and the Appellant is in the
business of processing poultry and was the importer of record for
this transaction.
[3] The Tower Group attempted to
re-correct the error and obtain its $2,470 through the London
Group and finally through the Appellant, Hallmark. The
application was first made through London Foods. London Foods
having no financial interest in seeing that the money was
refunded did not cooperate. Hallmark, upon request of the Tower
Group, then made application outside the two-year limit provided
for in subsection 261(3) of the Act.
[4] There is no doubt that the meat
products were exempt and the $2,470 was not exigible. Mr.
Melanson very fairly presented the case evidence on behalf of the
Appellant and entered a bundle of documents as Exhibit A-1. He
has no argument with the assumptions in the Reply to the Notice
of Appeal. His position is that he and the London Group were
misled by the officers of the Revenue Canada dealing with GST in
reply to London Foods' first application and that on
compassionate and equitable grounds, his company should receive
the $2,470.
[5] Subsection 261(3) clearly states
that a rebate for a payment made in error shall not be paid
unless the taxpayer files an application for rebate within two
years after the day the amount was paid. Clearly, Tower Group
paid the $2,470 outside the two-year limit. While the amount was
paid in error and the Appellant presents a deserving equitable
position, I cannot change the legislation. Only the Canadian
Parliament has that jurisdiction. Given the facts as presented, I
recommend that favourable consideration be given to an
application if made under the Financial Administration
Act. The appeal is dismissed.
Signed at Ottawa, Canada, this 31st day of March, 2003.
J.T.C.C.
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