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Citation:2009TCC227
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Date: 20090424
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Docket: 2009-563(IT)I
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BETWEEN:
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J. MALCOLM KILLAM,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________Motion
heard by conference call on April 23, 2009
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Before: The
Honourable Justice Wyman W. Webb
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Participants:
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For the
Appellant:
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The Appellant himself
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Counsel for the
Respondent:
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Susan Wong
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____________________________________________________________________
REASONS FOR ORDER
[1] This is a motion to quash the Notice of
Appeal that was filed by the Appellant on February 18, 2009. The issue under
appeal, as stated by the Appellant, was:
This Notice of Appeal relates to
Administrative Compliances of Registered E Filers with respect to Form T183
wherein the Ministers Efile Help Desk determined in August of 2008 the
Appellant had not complied with Regulation and was informed he would not be
approved for the coming year...
[2] The Appellant had
filed with his Notice of Appeal a copy of the letter that the Appellant had received
from the Canada Revenue Agency confirming the decision of the Efile Help Desk.
In this letter it is stated that:
If you feel that discretion was not
properly exercised during our administrative review of your request, you can
apply to the Federal Court of Canada for a judicial review under section 18.1
of the Federal Court Act within thirty (30) days of the date of this letter,
which is the date of our decision.
[3] The Appellant
stated that he had not noticed this reference to the Federal Court in this
letter and had simply filed his Notice of Appeal to this Court because he was
familiar with this Court in dealing with assessments and reassessments of tax.
[4] The Appellant is seeking a review of the
decision by the Canada Revenue Agency that the Appellant is no longer permitted
to electronically file income tax returns on behalf of his clients. This appeal
does not arise as a result of an assessment or a reassessment issued under the Income
Tax Act but rather, although the “Regulation” in issue is not identified in
the Notice of Appeal, appears to relate to an alleged failure of the Appellant
to comply with the provisions of subsection 150.1(4) of the Income Tax
Act.
[5] This Court was formed by an Act of
Parliament. The jurisdiction of this Court is set out in section 12 of the Tax
Court of Canada Act. This section provides, in part, as follows:
12. (1) The Court has exclusive original
jurisdiction to hear and determine references and appeals to the Court on
matters arising under the Air Travellers Security Charge Act, the Canada
Pension Plan, the Cultural Property Export and Import Act, Part V.1
of the Customs Act, the Employment Insurance Act, the Excise
Act, 2001, Part IX of the Excise Tax Act, the Income Tax Act,
the Old Age Security Act, the Petroleum and Gas Revenue Tax Act
and the Softwood Lumber Products Export Charge Act, 2006 when references
or appeals to the Court are provided for in those Acts.
[6] Subsection 169(1) of the Income Tax Act
provides for appeals to this Court and this section provides as follows:
169. (1) Where a taxpayer has served
notice of objection to an assessment under section 165, the taxpayer may appeal
to the Tax Court of Canada to have the assessment vacated or varied after
either
(a) the Minister has confirmed the
assessment or reassessed, or
(b) 90 days have elapsed after service of
the notice of objection and the Minister has not notified the taxpayer that the
Minister has vacated or confirmed the assessment or reassessed,
but no appeal under this section may be
instituted after the expiration of 90 days from the day notice has been mailed
to the taxpayer under section 165 that the Minister has confirmed the
assessment or reassessed.
[7] Section 171 of the Income Tax Act
also provides as follows:
171. (1) The Tax Court of Canada may dispose of an appeal by
(a) dismissing it; or
(b) allowing it and
(i) vacating the assessment,
(ii) varying the assessment, or
(iii) referring the assessment back to the
Minister for reconsideration and reassessment.
[8] Justice Hugessen of the Federal Court of
Appeal in The Queen v. The Consumers' Gas Company Ltd.,
[1987] 1 C.T.C. 79, 72 N.R. 206, 8 F.T.R. 321, [1987] 2 F.C. 60,
87 D.T.C. 5008 stated that:
13 ... What is put in issue on an appeal to
the courts under the Income Tax Act is the Minister's assessment…
[9] A taxpayer only has a right to appeal to
this Court on matters arising under the Income Tax Act in relation to an
assessment or a reassessment of tax. In this particular case, the Appellant is
not appealing any assessment or reassessment of taxes owing, but rather is
seeking a judicial review of a decision made by the Canada Revenue Agency that
he is no longer permitted to electronically file tax returns on behalf of his
clients. This is not a matter that is within the jurisdiction of this Court.
[10] As a result the Respondent’s motion is
granted and the appeal is quashed.
Signed at Ottawa,
Ontario, this 24th day of April 2009.
“Wyman W. Webb”
CITATION: 2009TCC227
COURT FILE NO.: 2009-563(IT)I
STYLE OF CAUSE: MALCOLM KILLAM AND HER MAJESTY THE QUEEN
PLACE OF MOTION: Toronto, Ontario
DATE OF MOTION: April 23, 2009
REASONS FOR ORDER BY: The
Honourable Justice Wyman W. Webb
DATE OF REASONS: April 24, 2009
APPEARANCES:
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For the
Appellant:
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The Appellant himself
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Counsel for the
Respondent:
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Susan Wong
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COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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