Citation: 2010 TCC 54
Date: 20100128
Docket: 2009-1761(IT)I
BETWEEN:
SATISH SABHARWAL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1] Satish Sabharwal appeals in respect of income tax
assessments for the 2003 and 2006 taxation years.
[2] According
to the reply, for the 2003 taxation year
the Minister of National Revenue assessed federal tax in the amount of $3,756.22,
provincial tax in the amount of $1,413.11, arrears interest in the amount of
$426.98 and a late-filing penalty in the amount of $245.03.
[3] For the 2006 taxation year, the Minister assessed
federal tax in the amount of $2,110.70, provincial tax in the amount of $1,193.60,
and arrears interest in the amount of $8.47.
[4] At the hearing, the appellant raised several grounds
for the appeal.
[5] First, the appellant submitted that he never received
a “T” slip for some of the income received in 2003. In particular, he mentioned
income from Great West Life Assurance Company from a wage loss replacement plan
in the amount of $4,131. The Minister had received a T4A information slip in
respect of this amount and the appellant acknowledged that he had received this
income.
[6] The problem that I have with the appellant’s
submission is that the requirement to pay tax on a particular item of income is
triggered by the receipt of the income, and not the receipt of a T slip. Even
if the appellant did not receive an information slip, the income must be
reported and the tax paid thereon.
[7] Second, the appellant stated that he had tax refunds
payable for the 2000, 2001, 2002, 2004, 2005 and 2008 taxation years. He submitted
that the refunds were inappropriately applied by the Minister to reduce student
loans.
[8] The relief that the appellant appears to be seeking is
to eliminate any amounts owing for the 2003 and 2006 taxation years because the
refunds for other years have been inappropriately withheld from him.
[9] I do not
agree with this submission. First, the
appellant has not established by proper evidence that the refunds were applied
inappropriately. However, even if that is the case, the relief that the
appellant seeks is not something that this Court has jurisdiction to grant. The
only relief that this Court can provide is to determine whether the amounts
assessed are accurate. The payment of taxes and refunds is not within the
Court’s jurisdiction.
[10] Third, the appellant submits that the assessment for
the 2003 taxation year was sent after four years.
[11] If the appellant suggests that the assessment is invalid
because it was issued too late, I do not agree. The assessment under appeal,
which was made on May 7, 2007, was the first assessment that was issued in
respect of the 2003 taxation year. Although the Income Tax Act contains
time limits for issuing reassessments, these limitation periods do not apply to
a first assessment. For this reason, the submission is rejected.
[12] Fourth, the appellant submits that a penalty and
interest should not be imposed as any deficiencies were not his fault.
[13] As for the penalty, the Minister assessed a
late-filing penalty for the 2003 taxation year on the ground that the appellant
did not file an income tax return for that year.
[14] The appellant, on the other hand, testified that he
did file a 2003 tax return and that it was filed on time. On cross-examination,
the appellant stated that he did not keep a copy of tax returns beyond three
years and accordingly he did not have a copy of the 2003 tax return available
at the hearing.
[15] In my
view, the appellant has not provided
sufficient evidence to establish that the 2003 tax return was filed. A simple
statement by the appellant to the effect that a tax return was filed is not
sufficient.
[16] If the
evidence had revealed that the appellant had a history of filing tax returns and paying tax on time, it may have been
reasonable to make a presumption that the 2003 tax return had been filed.
However, the evidence suggests that there were refunds payable for many years
and accordingly the filing history is of no assistance to the appellant.
[17] In the
circumstances, I conclude on balance that
the appellant did not file a 2003 tax return. Accordingly, the penalty will not
be vacated.
[18] The appellant also suggests that interest should be
waived on grounds that any tax owed was not his fault.
[19] This submission must be rejected on jurisdictional
grounds. The Tax Court of Canada has no jurisdiction to waive interest on the
grounds of due diligence.
[20] Finally, the appellant suggests that the Minister has
not been consistent in communicating the amounts that are owed.
[21] The amounts to which the appellant refers appear to be
balances of amounts owing from time to time. The Court does not have
jurisdiction over this subject matter which is a collection matter. The Court
can only determine whether the amounts that have been assessed are correct.
This submission is also rejected.
[22] In the result, the appeal will be dismissed. Each
party shall bear their own costs.
Signed at Toronto, Ontario this 28th day of January 2010.
“J. M. Woods”
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