Citation: 2014TCC63
Date: 20140303
Docket: 2012-4041(GST)I
BETWEEN:
ILLO D'AMBROSIO,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
V.A. Miller J.
[1]
This appeal relates to
a new housing rebate which Illo D’Ambrosio claimed with respect to the house he
built at 49 Hickey Hill Road in Maynooth, Ontario.
[2]
As a preliminary issue,
the Respondent brought a motion for an Order to have Daniel D’Ambrosio removed
from the style of cause on the basis that he did not have standing before the
Court.
[3]
The documentary
evidence showed that Illo D’Ambrosio submitted an application dated August 25,
2011 for a new housing rebate for a house at 49 Hickey Hill Road, Maynooth, Ontario (the “Property”). By notice of assessment dated September 21, 2011, he
was denied the rebate and he sent an objection dated October 31, 2011 to the
Minister of National Revenue.
[4]
Subsection 301(1.1) and
section 302 of the Excise Tax Act (the “ETA”) read:
301(1.1) Objection to assessment -- Any person who has been assessed
and who objects to the assessment may, within ninety days after the day notice
of the assessment is sent to the person, file with the Minister a notice of
objection in the prescribed form and manner setting out the reasons for the
objection and all relevant facts.
302. Appeal [of reassessment directly] to Tax Court -- Where a
person files a notice of objection to an assessment and the Minister sends to
the person a notice of a reassessment or an additional assessment, in respect
of any matter dealt with in the notice of objection, the person may, within
ninety days after the day the notice of reassessment or additional assessment
was sent by the Minister,
(a)
appeal therefrom to the Tax Court; or
[5]
It is clear from
subsection 301(1.1) that it is the person who has been assessed who has the
right to object to the assessment. Section 302 provides that the person who
objects to an assessment may appeal to the Tax Court. In this appeal, Illo
D’Ambrosio filed for the new housing rebate; he was assessed; and he objected
to the assessment. Only Illo D’Ambrosio has standing to appeal the notice of
assessment issued to him.
[6]
At the hearing of the
appeal, I issued the Order that the name Daniel D’Ambrosio shall be struck from
the style of cause. The only Appellant in this appeal is Illo D’Ambrosio.
[7]
The Minister of
National Revenue (“Minister”) disallowed the claim for the new housing rebate
(the “Rebate”) on the basis that the Property was not the primary place of
residence for the Appellant or a relation of the Appellant.
[8]
Paragraph 256(2)(a)
of the ETA provides:
Rebate for owner-built homes -- Where
(a)
a particular individual constructs or
substantially renovates, or engages another person to construct or
substantially renovate for the particular individual, a residential complex that
is a single unit residential complex or a residential condominium unit for use
as the primary place of residence of the particular individual or a relation of
the particular individual, …
the
Minister shall, subject to subsection (3), pay a rebate to the particular individual
equal to the amount determined by the formula …
[9]
The Property was
jointly owned by the Appellant, his spouse and his three children and the house
on the Property was built by them. It is the Appellant’s position that the
Property was the primary place of residence for Daniel D’Ambrosio, his son.
[10]
The Appellant and
Daniel testified that they purchased the Property on June 5, 2009. According to
Daniel, the Property was bought with the intention that they would build a
house and eventually have a farm. The Property consisted of approximately 100
acres of land with a dilapidated house. In 2009, they cleared the land of
debris and tore down the old house. They started to build a house on the
Property in the summer of 2010; and, according to their Construction Summary
Worksheet, the date of occupancy for the house was February 1, 2011.
[11]
In his application for
the Rebate, the Appellant was required to include one of several listed
documents to prove that the Property was occupied. However, he did not include
any of the documents listed on the application form and instead he included the
2011 tax bill for the Property. This bill was in the names of the owners but
was mailed to the Appellant’s address in Port Colborne rather than to the
Property. At the objection stage of this case, the Appellant was again asked to
support that the Property was either his primary residence or the primary
residence of his relation. He resubmitted the 2011 tax bill for the Property
and he also sent a copy of Daniel’s temporary driver’s licence which was issued
on October 20, 2011. The driver’s licence showed Daniel’s address as 49 Hickey Road, Maynooth but because the driver’s licence was issued after the Rebate had
been denied, the Minister asked the Appellant to send a hydro bill for the
Property. On June 7, 2012, the Appellant sent the Minister the hydro bill for
the Property. It was in the names of Daniel D’Ambrosio and Maria D’Ambrosio,
the Appellant’s spouse, but it was also mailed to the Appellant’s address in Port Colborne.
[12]
At the hearing, both
the Appellant and Daniel explained that they had all bills and letters with
respect to the Property sent to the Appellant’s address in Port Colborne
because there was a problem with the mailing address at the Property. The municipality of Hastings listed the address of the Property for tax purposes as 49 Hickey Road, Maynooth whereas the mailing address for the Property was 49 Hickey Hill Road and even this address was incorrect. The problem with the address for the
Property was finally fixed in June 2013. The address is now 329 Hickey Hill
Road.
[13]
I accept the
explanation concerning the address on the hydro and tax bill. However, that
alone did not support the Appellant’s position that the house was constructed
for use as Daniel’s primary place of residence. The test in paragraph 256(2)(a)
is intention. It is the Appellant’s intention at the time of constructing the
house that is relevant. Aside from the testimony of the witnesses, intention
can be shown by the actions of the parties and documentary evidence. In Yang
v R, 2009 TCC 636, Angers J. listed some of the factors which have been
considered by this court in determining what constitutes a primary place of
residence. He stated at paragraph 7:
Some
of these factors are the following: the parties' intention with regard to the
use of the housing unit as their primary residence; their length of stay at the
new unit; the address they use for correspondence; when they moved in and when
they moved their personal belongings, and if the move was delayed, what events
occurred that caused the delay; details of the insurance coverage; what they
did with their former residence or rental unit; and other factors that may be
relevant depending on the facts of the case.
[14]
Daniel stated that the
Property is his primary residence because it is the only property he owns. This
however, is not the test for finding “primary residence” in accordance with the
ETA.
[15]
The documentary
evidence showed that from 1998 to 2011, Daniel reported to the Canada Revenue
Agency (“CRA”) that his mailing address was in Toronto. He actually notified
the CRA on February 16, 2011 that his home address had been changed and he
provided them with a new address but this too was in Toronto. On June 18, 2012,
he reported that his mailing address was the Property.
[16]
Daniel’s T4s showed
that from 2002 to 2011 (inclusive) he worked at a pub in Toronto and he lived
in Toronto.
[17]
At the hearing, Daniel
stated that he now has an apartment in the Danforth area of Toronto. He stated
that he spends most of his time in Toronto. He used to work in Toronto but is
now unemployed as he is attending school in Toronto. He estimated that, when he
was working, he spent 3 days on the weekend at the Property. He stated that he
went to the Property on a Saturday and returned to Toronto on Monday or
Tuesday. He did not have a vehicle and he went to the Property only on the
weekends with the Appellant. After he stopped working, (he did not give a
date), he usually spent two days on the weekend at the Property.
[18]
There were no documents
to show that Daniel had moved to the Property. The temporary driver’s licence
which he submitted was only obtained after the claim for the Rebate was denied
and I have given it no weight. His change of address with the CRA in 2012 was
also to support his position in this matter.
[19]
The hydro bills
submitted to the CRA by the Appellant showed that the average daily usage of
electricity for the Property for March 8, 2011 to May 11, 2011 was only 5
kilowatts per day. It increased to 20 kilowatts per day for the summer period,
July 11, 2011 to August 11, 2011, but then decreased to an average of 2
kilowatts per day for the period August 11, 2011 to January 10, 2012. I have
concluded that the Property was occupied only part time and mainly during the
summer months.
[20]
At the time the
Appellant constructed the housing unit on the Property, Daniel worked and lived
in Toronto. Both the Appellant and Daniel stated that there were no prospects
of Daniel obtaining employment in Hastings County where the Property was
located. Daniel did not have a vehicle and could not commute to another area
for employment. Given this and the fact that the Property is located in an area
of Ontario where there are many recreational properties, I find that the Appellant
has not shown that, at the time of constructing the house, he intended the
Property to be Daniel’s primary residence. Also, he did not submit any
documents to support his position that the Property was the primary residence
for Daniel.
[21]
I find that the Appellant
is not entitled to the Rebate and his appeal is dismissed.
Signed at Ottawa, Canada, this 3rd
day of March 2014.
“V.A. Miller”
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