Citation: 2010 TCC 450
Date: 20100830
Docket: 2010-1468(IT)APP
BETWEEN:
MICHAEL HAINES,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
This is an application for an
order granting an extension of time to institute an appeal from an assessment
made under the Income Tax Act. The assessment was issued to the
applicant, Michael Haines, for the 2008 taxation year.
[2]
Mr. Haines explained the relevant
background at the hearing. On the advice of a financial planner, Mr. Haines
made substantial withdrawals from his RRSP in 2008 and 2009 in order to
purchase a house. He understood that the withdrawals would be included in
income. However, he thought that the appropriate tax would be withheld at
source. When preparing his 2008 income tax return, he discovered that the
source deduction was not sufficient and that there was additional tax to pay.
[3]
Mr. Haines seeks relief from this
additional tax and states that no one from the Canada Revenue Agency (CRA) has
provided him with any assistance. He has no recourse except to apply to this
Court.
[4]
Furthermore, Mr. Haines referred
to media reports that former Prime Minister Brian Mulroney was relieved of half
the tax he owed. He is looking for the same type of relief.
[5]
Mr. Haines was a few weeks late in
filing a notice of appeal. He had incorrectly assumed that the 90 day time
period was counted by work days. Accordingly, this application was brought to
extend time.
[6]
The circumstances that led to the
notice of appeal being filed late are sympathetic, but the application
nevertheless should be dismissed.
[7]
Subsection 167(5) of the Income
Tax Act sets out several requirements that must be met before an
application to extend time may be granted by this Court. One of these
requirements is that the applicant must demonstrate that there are reasonable
grounds for the appeal. The relevant provision is reproduced below.
167(5)
No order shall be made under this section unless
(a) the application is made within one year after the expiration
of the time limited by section 169 for appealing; and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by section 169 for appealing the
taxpayer
(A) was unable to act or to instruct another to act in the taxpayer’s name, or
(B) had a bona fide intention to appeal,
(ii) given the reasons set out in the application and the circumstances
of the case, it would be just and equitable to grant the application,
(iii) the application was made as soon as circumstances permitted, and
(iv) there are reasonable grounds for the appeal.
[Emphasis added.]
[8]
Mr. Haines has not demonstrated
that there are reasonable grounds for the appeal. He has not shown that the
appeal has any chance of success.
[9]
Mr. Haines does not dispute that
the RRSP withdrawals must be included in income, and he does not disagree with
how the tax or interest were calculated. Essentially, he is looking for relief
on grounds of fairness.
[10]
Unfortunately for Mr. Haines, the
Tax Court has no power to grant relief on grounds of fairness. Parliament has the power to enact
tax legislation, and this Court’s mandate is only to ensure that tax
assessments conform to the relevant legislation. It is not in dispute that the
assessment is in conformity with the RRSP legislation.
[11]
Mr. Haines stated that he was
looking for the same type of relief that, according to media reports, was
recently granted to former Prime Minister Mulroney.
[12]
Unfortunately for Mr. Haines, even
if the former Prime Minister’s circumstances were similar to his own, it would
not be of assistance in this Court. Counsel for the respondent referred me to
the following comment of Evans J.A. in Sinclair v. The Queen, 2003 FCA
348, 2003 DTC 5624.
[7] In our
view, it is not open to the Tax Court to set aside a tax reassessment on the
ground that the taxpayer ought to have been given the same favourable treatment
as others who are similarly situated.
[13]
In the circumstances, this
application does not satisfy the legislative requirement set out in s. 167(5)(b)(iv),
namely, that the applicant demonstrate that there are reasonable grounds for
the appeal.
[14]
The application will be dismissed
on that basis.
[15]
Although the disposition of this
application will result in Mr. Haines not being able to pursue an appeal in the
Tax Court, there may be other avenues for potential relief that Mr. Haines may
wish to explore with the CRA. It is helpful that counsel for the respondent
offered to assist Mr. Haines by providing contact information in this regard.
Signed at Ottawa,
Canada this 30th day of August 2010.
“J. M. Woods”
CITATION: 2010 TCC 450
COURT FILE NO.: 2010-1468(IT)APP
STYLE OF CAUSE: MICHAEL HAINES and HER MAJESTY THE QUEEN
PLACE OF HEARING: Grande
Prairie, Alberta
DATE OF HEARING: August 17, 2010
REASONS FOR JUDGMENT BY: The
Honourable Justice J. M. Woods
DATE OF JUDGMENT: August 30, 2010
APPEARANCES:
|
For the
Applicant:
|
The Applicant himself
|
|
Counsel for the
Respondent:
|
Robert Neilson
|
COUNSEL OF RECORD:
For the Applicant:
Name: N/A
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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