Date: 20021030
Docket: A-669-01
Neutral citation: 2002 FCA 420
CORAM: DÉCARY J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
IBM CANADA LIMITED
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on October 30, 2002.
Judgment delivered from the Bench at Toronto, Ontario, on October 30, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
[1] We are not persuaded that the Trial Division Judge erred in dismissing the appellant's appeal under the Excise Tax Act for the rebate of federal sales tax in respect of computer replacement parts held in inventory for the fulfilment of maintenance agreements with its customers. Paragraph 120(1)(a) of the Excise Tax Act restricts the rebates to inventory held for sale, lease or rental, separately for a price or rent in money. The replacement parts in question here were not available for purchase separately for a price in money. They were only provided under the maintenance agreements between the appellant and its customers. The maintenance agreements do not provide for the sale of parts separately and the invoices in evidence do not show the sale of parts for a price.
[2] It is not necessary to address the Trial Division Judge's analysis of the definition of "sale" for purposes of the Excise Tax Act or whether subsection 120(2.1) is applicable to this case and we express no opinion on the Trial Division Judge's findings on these points.
[3] We agree with the Trial Division Judge that the Charter is not applicable to this case.
[4] The appeal will be dismissed with costs.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF CANADA
Appeal Division
Names of Counsel and Solicitors of Record
DOCKET: A-669-01
STYLE OF CAUSE: IBM CANADA LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: WEDNESDAY, OCTOBER 30, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: ROTHSTEIN, J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON WEDNESDAY, OCTOBER 30, 2002.
DATED: WEDNESDAY, OCTOBER 30, 2002
APPEARANCES BY: Mr. Robert G. Kreklewetz
Mr. Brent F. Murray
For the Appellant
Ms. Marie Crowley
Mr. Edward R. Sojonky Q.C.
For the Respondent
SOLICITORS OF RECORD: MILLAR WYSLOBICKY KREKLEWETZ LLP
BCE Place - Bay Wellington Tower
28th Floor, P.O. Box 745
181 Bay Street
Toronto, Ontario
M5J 2T3
For the Appellant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20021030
Docket: A-669-01
BETWEEN:
IBM CANADA LIMITED
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
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