Date: 20010424
Docket: A-384-00
CORAM: ROTHSTEIN, J.A.
NOËL, J.A.
SHARLOW, J.A.
BETWEEN:
GKO ENGINEERING - A PARTNERSHIP
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Edmonton, Alberta, on Tuesday, April 24th, 2001.
JUDGMENT delivered at Edmonton, Alberta, on Tuesday, April 25th, 2001.
REASONS FOR JUDGMENT BY: ROTHSTEIN, J.A.
CONCURRED IN BY: NOËL, J.A.
SHARLOW, J.A.
We have not been persuaded that Judge Rowe erred in dismissing the Applicant's judicial review application on the basis that the GST rebate application was made by the wrong person. While there is some ambiguity in the Applicant's rebate application, Judge Rowe found as a fact that the rebate application was made by the Applicant and not by the person that remitted the GST in question. There was evidence upon which his factual finding was based. There is no basis for this Court to interfere with that factual finding.
The Applicant argued that it was entitled to claim the rebate because it was the successor to the business of the person that had remitted the GST. Even if there was a form of successorship with respect to that business, there is no evidence that the alleged entitlement to the rebate was inherited by the Applicant.
The Applicant relied on section 272.1 of the Excise Tax Act. However, that reliance is misplaced. Section 272.1 deals with anything done by a person as a member of a partnership. What was done here was the filing of a rebate application by the partnership rather than by the person who, prior to the partnership having been formed, remitted the GST with respect to which the rebate was sought. Section 272.1 has no application.
Finally, the Applicant says that if the rebate application was made by the wrong person it was an honest mistake with respect to which this Court should grant relief. However, there is no evidence that the completion of the rebate application in the name of the Applicant was anything other than an intentional act on the part of the Applicant. This was not the case of an honest mistake such as a clerical error but rather a change of intention after it was discovered that the application was made by the wrong person.
These findings suffice to dispose of this appeal.
Another issue, whether a supplier may claim a rebate under section 261 of the Excise Tax Act was raised by the Respondent. We did not require argument on this issue and express no view on the finding of the Tax Court Judge in that regard.
The appeal will be dismissed with costs.
"Marshall E. Rothstein"
J.A.
EDMONTON, Alberta
April 24th , 2001.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-384-00
STYLE OF CAUSE: GKO Engineering - A Partnership v.
Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: April 24th , 2001
REASONS FOR JUDGMENT BY ROTHSTEIN, J.A.
CONCURRED IN BY: NOËL, J.A.
SHARLOW, J.A.
DATED: April 24th, 2001
APPEARANCES:
Gordon D. Beck for the Applicant
Rhonda L. Nahorniak for the Respondent
SOLICITORS OF RECORD:
Field Atkinson Perraton for the Applicant
Morris Rosenberg for the Respondent
Deputy Attorney General
of Canada
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