Citation: 2009TCC312
Date: 20090603
Docket: 2008-129(IT)I
BETWEEN:
LESLIE BERNIER,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, D.J.
[1]
This appeal, pursuant
to the informal procedure, was heard at Regina,
Saskatchewan on May 27, 2009. The Appellant was the only witness.
[2]
The particulars in dispute
for the Appellant’s 2002 and 2003 taxation years are set out in the following
paragraphs of the Reply to the Notice of Appeal:
7. The original Notices of Assessment for the 2002 and 2003
taxation years were dated and mailed to the Appellant on April 10, 2003 and May
25, 2004, respectively.
8. In reassessing the Appellant for the 2002 and 2003
taxation years on
March 2, 2006, the Minister included into income for each year a
taxable benefit for the employer provided parking from Saskatchewan Industry
and Resources (the “Employer”).
9. The amount of the taxable benefit for employer provided
parking included into income was $840.12 and $703.28 for the 2002 and 2003
taxation years respectively.
10.
The amount of the benefit assessed to the
Appellant was based on 100% of the market value of the employer provided
parking less any amount paid by the Appellant. The benefit was calculated as
follows:
|
|
2002
|
2003
|
|
Market Value
|
$840.12
|
$848.28
|
|
Amount Paid
|
(0)
|
(145.00)
|
|
Benefit
|
$840.12
|
$703.28
|
11. By Notification of Confirmation dated September 26, 2007,
the Minister confirmed the reassessments for the 2002 and 2003 taxation years
as the parking spot received and enjoyed by the Appellant by virtue of an
office or employment was a benefit conferred by the Employer.
12. The Appellant filed with the courts an application for an
extension of time to file a Notice of Appeal for the 2002, 2003, and 2004
taxation years on January 9, 2008.
13. The Application was heard in the Tax Courts of Canada on
November 28, 2008 and from which an Order dated December 12, 2008 was issued
which deemed the Notice of Appeal in respect of the 2002 and 2003 taxation
years to be filed as of the date of the order and the application for an
extension of time within which to file a Notice of Appeal in respect of the
2004 taxation year to be dismissed.
14. The Appellant’s Notice of Appeal for the 2002 and 2003
taxation years was filed with the Tax Court on December 12, 2008.
15.
In so reassessing the Appellant for the 2002 and
2003 taxation years, and in confirming the reassessments, the Minister assumed
the following facts:
(a)
at all material times, the Appellant was
employed by the Government of Saskatchewan in the Department of Industry and
Resources;
(b)
at all material times, the Appellant was assigned
stall 39 (the “Parking Stall”) at the Financial Building located at 2101 Scarth Street in Regina (the
“Parking Lot”);
(c)
at all material times, the Parking Lot was owned
by FB Properties Ltd;
(d)
the Parking Lot was leased by Saskatchewan
Property Management Corporation (“SPMC”);
(e)
SPMC is a provincial crown corporation
responsible for providing office space and related services to all provincial
government departments;
(f)
all costs SPMC paid for parking spaces were then
billed to, and paid for by the Employer, on a monthly basis;
(g)
the value of the parking provided to the
Appellant was based on actual rates supplied by SPMC that were billed to the
Employer;
(h)
the fair market value of the Parking Stall
provided to the Appellant by the employer in the 2002 taxation year was
$840.12, being $70.01 per month;
(i)
the fair market value of the Parking Stall
provided to the Appellant by the employer in the 2003 taxation year was
$848.28, being 70.69 per month;
(j)
in the 2002 taxation year, the Parking Stall was
provided to the Appellant by the Employer at no cost;
(k)
in the 2002 taxation year, the value of the
benefit in respect of parking provided to the Appellant was not less than
$840.12;
(l)
in September 2003 the parking policy of the
Employer changed and the Appellant was required to pay $29.00 a month for
parking through payroll deduction;
(m)
in the 2003 taxation year, the Appellant paid a
total amount of $145.00 to the Employer for the use of the Parking Stall;
(n)
in the 2003 taxation year, the value of the
benefit in respect of parking provided to the Appellant was not less than
$703.28 ($848.28 - $145.00);
(o)
the employer provided parking was not scramble
parking as the number of parking stalls provided to employees was the same as
the number of parking stalls available;
(p)
parking stalls were obtained by employees on a
first come first served basis by filling out a parking application;
(q)
if parking was not available at the time of the
application, the employee’s name was added to the parking pool waiting list
until a stall became available;
(r)
the Parking Stall was provided to the Appellant
as a result of his employment with the Employer;
(s)
the Appellant did not use a vehicle on a regular
basis for employment purposes; and
(t)
the parking provided to the Appellant by the
Employer primarily benefited the Appellant and not the Employer;
[3]
None of the assumptions
in paragraph 15 were rebutted except (p). The Appellant testified that parking
stalls were awarded by seniority of time of employment.
[4]
The Appellant also
disputed two other matters:
1.
The length of time it
took following his Notice of Objection to get the matter heard in Court. This
dispute is resolved by paragraph 169(1)(d) of the Income Tax Act
which gives the taxpayer the right to appeal to the Court after 90 days from
the service of his Notice of Objection has passed. It may be that the taxpayer
didn’t know this, but that right is spelled out clearly in the Income Tax
Act and it was his responsibility to bring the appeal forward after the 90
days had he chosen to do so.
2.
The fact that he was
assessed retroactively when, he testified, he would have refused the parking
space had he known that he would have been taxed on its benefit. This complaint
is understandable, but retroactive assessments are universal, since Canada
Revenue Agency cannot be aware of each taxpayer’s activities concurrently with
their occurrences.
[5]
Mr. Bernier also
complained about interest levied on the unpaid tax. Some of that was forgiven
by the Respondent before the Hearing. However, interest is levied on tax found
to be owing and therefore that interest is not subject to the Court’s
jurisdiction.
[6]
For these reasons the
appeal is dismissed.
Signed at Edmonton, Alberta, this 3rd day of June 2009.
“D.W. Beaubier”
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