MacGowan v. The Queen, docket 1999-3838(IT)I (Informal Procedure)

Date: 20001005

Docket: 1999-3838(IT)I

BETWEEN:

JOHN MACGOWAN,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Oral Reasons for Judgment

(Delivered orally from the Bench at Regina, Saskatchewan on October 5, 2000.)

Hershfield, J.T.C.C.

[1]            This is an appeal by John MacGown in respect of an assessment of his 1997 income tax return. The assessment assesses the Appellant's 1997 income tax return as filed. The Notice of Appeal cites that the reasons for the appeal are as stated in his Notice of Objection which cites section 15 of the Charter of Rights and Freedoms and asserts, amongst other things, that the Income Tax Act is unequally administered through the Department's policies and procedures, that the Income Tax Act is unfair taxation denying most Canadians, except for the rich and other special interest groups, their constitutional rights under sections 7 and 12 of the Charter, as well as section 15.

[2]            It asserts that he, the Appellant, is the victim of discrimination based on race, ethnic origin and colour. Further, his Notice of Appeal refers to his having mental and physical disabilities. No specific section of the Income Tax Act nor any specific inclusion or deduction as per his own filing is referred to as being one that offends the Charter.

[3]            Although not in evidence, material filed with the Court as part of the Notice of Appeal confirms that the Appellant was advised in respect of a previous assessment, appeal and Charter challenge before this Court, that such challenge required under section 57 of the Federal Court Act, that notice of the challenge be timely given to the Federal Attorney General and to the Provincial Attorney Generals. No such notices were given as so required for such earlier appeal or for this appeal in respect of the 1997 taxation year of the Appellant.

[4]            It is noted that the Charter infringement as asserted in this appeal wants in specifity. A broad generalization that the Income Tax Act as a whole violates rights that are not particularized in the manner in which they discriminate may not suffice as sufficient notice of asserted discrimination under the Charter, even if the assertion, in the form set out in the Notice of Appeal, had actually been delivered in accordance with section 57 of the Federal Court Act. Since the Notice of Appeal reveals no basis for the appeal other than a dubious claim, at least as framed in the Notice, of the violation of Charter rights, and since the subject assessment assesses the Appellant's 1997 tax year as filed, I am dismissing the appeal without costs.

[5]            I would go on to note that the Appellant has raised in the Notice of Appeal a question regarding the prior judgment of this Court respecting his 1994, 1995 and 1996 taxation years. He implies that the judgment might have materially relied on the sworn oral testimony of an employee of Revenue Canada who the Appellant asserts lied under oath as to statements made by his wife, the Appellant's wife. Such assertion is supported by an Affidavit made by his wife, which Affidavit is included with his appeal of this 1997 assessment.

[6]            The Appellant suggests that the asserted perjured evidence of Revenue Canada's employee in the prior appeal which falsely attributed statements to have been made by his wife, materially affected the outcome of that earlier case, presumably by contradicting the Appellant's own factual assertions in that earlier case.

[7]            Counsel for the Respondent in this 1997 appeal asserts that this Court has no jurisdiction to review a previous judgment of this Court, this being a statutory court charged only to dismiss, allow or vary an assessment as provided for in section 171 of the Income Tax Act. I would add that section 12 of the Tax Court of Canada Act states that this Court has the exclusive jurisdiction to hear and determine references and appeals on income tax matters only where such reference or appeals are referred to in the Income Tax Act. This would recognize that the Income Tax Act also gives this Court exclusive jurisdiction over references, not just appeals, as provided for in the Income Tax Act. Jurisdiction is provided for in section 12 and in the Income Tax Act for section 173 and 174 determinations. While the provisions of the Tax Court of Canada Act claim exclusive jurisdiction over these particularized areas, it might also be taken to suggest that it has jurisdiction, albeit not exclusive jurisdiction, in other matters.

[8]            The only germane example of such additional jurisdictional authority might be seen in rule 172 of the Tax Court of Canada Rules, General Procedure, which provides for circumstances where this Court may grant relief in respect of a prior judgment of this Court. If, for example, the Appellant can establish that the alleged perjury constitutes fraud, then under the General Procedure Rules of this Court, a matter might be brought before this Court to suspend the operation of that judgment or to seek other relief. Arguably this rule applies only to General Procedure matters, which this case is not. Possibly, although the question is not really before me, it might even be argued that this rule goes beyond the statutory power of the Court.

[9]            However, coming back to the case at hand, assuming jurisdiction of this Court under rule 172, I would think that even if the alleged perjury were found to constitute fraud so as to fall within the express language of that rule, the statement falsely attributed to the Appellant's wife under sworn testimony would have to be shown to have had a material impact on the outcome of the judgment.

[10]          In any event, the question raised in the Notice of Appeal for 1997, cannot be taken as a motion for relief under 172 of the Tax Court of Canada Rules, General Procedure. There has been no timely notice to the Respondent of rule 172 relief in respect of the 1994, 1995, 1996 appeal. Any such motion would have to properly be framed, filed and served.

[11]          Accordingly, I find that I have no jurisdiction to deal with the question further. This Court then can only suggest that the Appellant seek counsel on how and whether or not to proceed further. The Appellant should be aware that allegations of perjury constituting fraud are serious and may carry a heavy burden, and if pursued without experienced counsel's advice and assistance, could result in costs and damages being awarded against him, the Appellant, in this case.

[12]          The Court should not be imposed upon with allegations that might reflect innocent misunderstandings that might have been contested or clarified at those proceedings in which the alleged perjury arose.

[13]          Further, this Court should not be imposed upon by allegations of wrong doing by Respondents where the wrong doing, even if established and corrected, would have no impact on the outcome of the matter. This may or may not be the case here.

[14]          On the other hand, material testimony knowingly falsely sworn with a view to improperly exacting a tax would not be tolerated by this or any court. It could well constitute contempt en facie and again be within the jurisdiction of this Court. I have no basis to make any determination as to which side this allegation falls.

[15]          I make no direction or seek any undertaking by counsel for the Respondent in this case to make further inquiries. But, if this allegation is not seen by the Crown to be frivolous or if it is seen to be of material consequence, then I would think that the Crown would pursue the question further.

"J.E. Hershfield"

J.T.C.C.