1999-4766(GST)I
BETWEEN:
ERICA DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on May 5, 2000 at Toronto, Ontario,
by
the Honourable Judge D.W. Beaubier
Appearances
For the
Appellant:
The Appellant herself
Counsel for the
Respondent:
Jocelyn Espejo Clarke
JUDGMENT
The
appeal from the assessment made under the Excise Tax Act,
notice of which is dated February 1, 1999 and bears number
08EP-115947590, is allowed and referred back to the Minister of
National Revenue for reconsideration and reassessment in
accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 9th day of May
2000.
J.T.C.C.
Date: 20000509
Docket: 1999-4766(GST)I
BETWEEN:
GLENDA DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, J.T.C.C.
[1] This appeal pursuant to the
Informal Procedure was heard at Toronto, Ontario on May 5, 2000.
The Appellant testified and the Respondent's auditor, Scott
Lindhorst, C.M.A., testified.
[2] The Appellant testified that she
married her husband in December, 1991. When cross-examined on the
question that she had not filed with Revenue Canada as a married
person, she did not deal with this subject again. The
Appellant's husband lived in Toronto and she lived in Guelph.
They decided to open a store "Fasco Variety" at
39 MacDonnell Street in Guelph. It sold frozen, cooled and
other products and some Caribbean food such as plantains, green
bananas and salted meats. They opened the store in August, 1992
in a premises of about 1,000 square feet. The Appellant borrowed
and invested capital in the store consisting of the
following:
Cash
$20,000
Credit Union
loan
30,000
Royal Bank
loan
10,000
$60,000
The business name was a sole proprietorship in the
Appellant's name and she registered for G.S.T. in her sole
name. She states that she did the bookkeeping and filed the
reports. However, she believes that her husband may have forged
her name to some of the cheques for input tax credits which she
received. The Appellant stated that the $20,000 cash was money
she had acquired to provide her parents in the Caribbean with a
home.
[3] In September, 1992 the Appellant
began a course of divinity studies in Hamilton. At about the end
of August, 1993 the Appellant's husband decided that he would
do direct sales of small "dreambooks" in Toronto and
the store was rented to purchase to Gosticks. The Appellant and
her husband continued to commute back and forth to Guelph from
Hamilton and Toronto respectively. The Appellant continued to
file forms for G.S.T. input tax credits. Her husband apparently
printed and sold the dreambooks in Toronto in 1995 under the
"Fasco" name and the Appellant claimed input tax
credits for the appeal period from January 1, 1995 to March 31,
1997.
[4] By about May of 1994 the Gosticks
and all of the contents of the store premises disappeared. The
Appellant blames the Gosticks. However, she was not visiting the
store; her husband apparently was from time to time, and some of
the equipment which disappeared was in his name and he also
disappeared by 1997.
[5] When her husband was selling
dreambooks in Toronto the Appellant kept on doing the paperwork
while living at times in Guelph and at times in Hamilton. She
graduated from her divinity course and obtained a full time job
in 1996. She was the person who filed the G.S.T. credit claims in
question. At no time before trial did the Appellant refer to the
alleged dreambook business. She admitted in Court that she did
not file all of the documents required for validation of her
G.S.T. input tax credits and that some of the larger purchases
were in her husband's name.
[6] Revenue Canada began this audit by
June of 1997 and wrote the Appellant for a meeting on July 31.
1997. She arranged a meeting for October and cancelled it.
Revenue Canada wrote her thereafter but the Appellant testified
that she treated the matter on the basis that they would meet at
her convenience and she did not arrange another meeting. The
audit was finalized on November 17, 1997.
[7] The Appellant did not lead any
evidence to rebut the assumptions or the allegations of the
Respondent or its witness, Mr. Lindhorst. The Respondent admitted
an error for 1995 which entitles the Appellant to a credit in her
favour of $96.91 for 1995. On this basis the over claimed tax
credits assessed are reduced as follows:
Assessed
$5,300.76
Credit for
1995
- 96.91
Overclaimed Tax Credits found
by the
Court
$5,203.85
[8] Accordingly, the Court finds that
the Appellant overclaimed input tax credits for the period of
$5,203.85 and that she did not have adequate documentation for
them as required under subsection 169(4) of the Excise Tax
Act. This matter is referred to the Minister for
reconsideration and reassessment in accordance with these
reasons.
Signed at Ottawa, Canada this 9th day of May
2000.
J.T.C.C.
COURT FILE
NO.:
1999-4766(GST)I
STYLE OF
CAUSE:
Erica Davis and The Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
May 5, 2000
REASONS FOR JUDGMENT BY: The Honourable
Judge D.W. Beaubier
DATE OF
JUDGMENT:
May 9, 2000
APPEARANCES:
For the
Appellant:
The Appellant herself
Counsel for the Respondent: Jocelyn
Espejo Clarke
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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