Date:
20021212
Dockets:
2000-2597-IT-G,
2000-2598-IT-G
BETWEEN:
WILLIAM G.
GREEN,
JENNY
GREEN,
Applicants,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Order
Little,
J.
FACTS
[1]
This is an application for a determination of a question of law
pursuant to Rule 58(1)(a) of the Tax Court of Canada
Rules (General Procedure).
[2]
The Applicants request that the Court determine the question of
law in favour of the Applicants that paragraph 245(3)(b)
of the Income Tax Act (the "Act") cannot
apply their 1995 taxation year and directing that it is not an
issue to be determined in these appeals.
[3]
In their Notice of Motion the Applicants ask, in the alternative,
that the Court strike out paragraphs 8(d) and 11(3) and 11(5) of
the Minister's Reply as being improper and that the
Respondent be enjoined from relying upon the new basis that there
is an avoidance transaction within the meaning of paragraph
245(3)(b) of the Act since to do so would
indirectly permit the Respondent to bypass the limitation period
of subsection 152(4) of the Act.
[4]
In the further alternative the Applicants ask in their Notice of
Motion for the Court to confirm that it has no jurisdiction to
grant any relief to the Respondent upon the basis that there is
an avoidance transaction within the meaning of paragraph
245(3)(b) (series of transactions) since to do so would
indirectly permit the Respondent to bypass the limitation period
of subsection 152(4) of the Act.
ISSUE:
[5]
Should the Court issue a ruling under Rule 58(1)(a) of the
Tax Court of Canada Rules?
ANALYSIS
[6]
Rule 58(1)(a) of the Tax Court of Canada Rules (General
Procedure) calls for the determination of a question at law.
The jurisprudence stated that the question must be a
"pure question of law" i.e. there
must be no dispute on the relevant and material facts. In this
situation since the parties have not agreed upon all of the
relevant facts it is not appropriate to issue a ruling under Rule
58.
[7]
The applications are dismissed.
Signed at
Vancouver, British Columbia, this 12th day of December
2002.
J.T.C.C.
COURT FILE
NO.:
2000-2597(IT)G
STYLE OF
CAUSE:
William G. Green and
Her Majesty the Queen
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
October 16, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge L.M.
Little
DATE OF
JUDGMENT:
December , 2002
APPEARANCES:
Counsel
for the Applicant: Neil W. Nichols
Counsel
for the
Respondent:
J.E. (Ted) Fulcher
COUNSEL OF
RECORD:
For the
Applicant:
Name:
Neil W. Nichols
Firm:
Nichols & Company
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE
NO.:
2000-2598(IT)G
STYLE OF
CAUSE:
Jenny Green and
Her Majesty the Queen
PLACE OF
HEARING:
Edmonton, Alberta
DATE OF
HEARING:
October 16, 2002
REASONS FOR
JUDGMENT BY: The Honourable Judge L.M.
Little
DATE OF
JUDGMENT:
December , 2002
APPEARANCES:
Counsel
for the Applicant: Neil W. Nichols
Counsel
for the
Respondent:
J.E. (Ted) Fulcher
COUNSEL OF
RECORD:
For the
Applicant:
Name:
Neil W. Nichols
Firm:
Nichols & Company
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-2597(IT)G
BETWEEN:
WILLIAM G.
GREEN,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Application
heard on common evidence with the application of Jenny
Green (2000-2598(IT)G) on October 16, 2002, at
Edmonton, Alberta, by
the
Honourable Judge L.M. Little
Appearances
Counsel
for the Applicant: Neil W. Nichols
Counsel
for the
Respondent:
J.E. (Ted) Fulcher
ORDER
The
application made under the Income Tax Act for the 1995
taxation year is dismissed in accordance with the attached
Reasons for Order.
Signed at
Vancouver, British Columbia, this 12th day of December
2002.
J.T.C.C.
2000-2598(IT)G
BETWEEN:
JENNY
GREEN,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Application
heard on common evidence with the application of William G.
Green (2000-2597(IT)G) on October 16, 2002, at
Edmonton, Alberta, by
the
Honourable Judge L.M. Little
Appearances
Counsel
for the Applicant: Neil W. Nichols
Counsel
for the
Respondent:
J.E. (Ted) Fulcher
ORDER
The
application made under the Income Tax Act for the 1995
taxation year is dismissed in accordance with the attached
Reasons for Order.
Signed at
Vancouver, British Columbia, this 12th day of December
2002.
J.T.C.C.
Email this Content