Citation: 2007TCC713
Date: 20071126
Docket: 2006-2491(IT)I
BETWEEN:
WALTER MELNYK,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
O'Connor, J.
[1] The Reply to the
Notice of Appeal in this matter contains numerous assumptions and concludes
that the principal issues to be decided are as set forth in paragraph 19 of the
said Reply:
B. ISSUES TO BE DECIDED
19. The issues to be decided
are:
a) whether
Hi-Tech was a Canadian-controlled private corporation that was a small business
corporation during the 1991 taxation year of the Appellant.
b) whether
all or part of a Business Investment Loss (“BIL”) claimed in the amount of
$12,600.00, or any other amount, may be included in a deduction of an Allowable
Business Investment Loss (“ABIL”) in computing the Appellant’s income for the
1991 taxation year.
Page: 2
[2] The Appellant (Mr.
Melnyk) appeared in Court and instead of contesting the assumptions of the
Minister of National Revenue (“Minister”) in the Reply and instead of
contesting any of the issues set forth in the Reply, chose to file with the
Court what he has referred to as a “Notice of Motion”, the most relevant
extracts of which read as follows:
Whereas Justice Department lawyers
have … described the attached “Declaration of Taxpayer Rights” (which is
attached to the Income Tax Act) as advertisement, frivolous, customer service
promises, which trivializes and possibly frustrates OR FALSIFIES the true
intention of its author(s)…
Whereas the courts must consider
seriously and determine its (D.T.R.) real meaning or status as it is of such
great import and benefit to all Canadians. The Tax Court of Canada is the
obvious place for such a ruling as, in the least, the T.C.C. ought to refer the
document to the relevant body for such a determination (including referral of
Plaintiff’s entire file if appropriate)…
Whereas Canadian Taxpaying citizens
may have been deceived into thinking that, upon reading it, that they actually
have real & concrete taxpayer “rights”, and been fooled…
Whereas the Declaration of Taxpayer
Rights (D.T.R.) is such a vital document and of great interest to citizens, and
is placed at the very end of the I.T. Act (after about 2000 pages of difficult,
specialized, legalistic language) where it is unlikely to be found or read …
and which further trivializes/marginalizes any real status or meaning which it
may have…
…
Whereas the I.T. Act is a document
of great length and great complexity with highly specialized language such as
to discourage ordinary citizens of ordinary means or of ordinary education, and
is a source of constant frustration, anxiety, and confusion to the population…
Page: 3
Whereas millions of taxpaying
citizens are in need of enlightenment, education/instruction, and of SIMPLE
assistance. And, who might otherwise challenge the interpretations, actions,
abuses (potential), or violations of their “rights” if they could only know
that they actually do have such rights, EXCEPT their being such a huge
imbalance in the powers and LIMITLESS resources of government-financed CRA …
and the citizenry so as to deny basic justice whether procedural or substantive
in questions of taxation…
Whereas numerous rights violations
(D.T.R., & possible Charter rights) have been described and chronicled by
this plaintiff at the hands of CRA … and which have been submitted previously
to the court. And, whereas an adversarial relationship has developed and the
plaintiff has been alienated from the normal process and usual relations…
Whereas the plaintiff’s experience
shows that the public service does not always serve the public and exists as an
elite class in society which can ignore citizens rights or violate such with
impunity and little if any consequence to themselves or to CRA…
…
THEREFORE BE IT RESOLVED THAT:
-
the
T.C.C. rule on the exact status of the D.T.R. so that the citizenry will be
informed and not deceived as to the EXACT status/meaning of their rights; or,
if it will not/cannot, that it refer this matter to the known appropriate venue
for such a ruling.
-
the
court rule as to whether any of the plaintiff’s rights (whether D.T.R. or
Charter rights) have been violated based on all his submissions to the Court so
far (esp. s.7 of the Charter regarding security of the person, and s.15 of the
Charter regarding unusual treatment), as well as the Declaration of Taxpayer Rights
…
…
Page: 4
…
that CRA … conduct free services to
help the public comprehend the chaotic/convoluted and complex I.T. Act since
there are no choices but to obey it…
…
-
that
all penalties and interest charges be waived in the case of the PRESENT
plaintiff, Walter Melnyk.
[3] Regrettably, Mr.
Melnyk’s appeal cannot succeed as all of the assumptions of the Minister must
be assumed to be correct and Mr. Melnyk has not led any evidence or argument
challenging these assumptions nor contesting his assessment. Moreover, I have
no jurisdiction to waive interest and have found no reason to waive penalties. Consequently,
the appeal must be dismissed.
[4] At the hearing,
however, I mentioned to Mr. Melnyk that I would attempt to assist him in his
position with respect to the Minister and the processes of taxation and the
potential administrative avenues that might be of assistance to him.
[5] Consequently, I
have requested the Registry of the Tax Court of Canada to furnish to Mr. Melnyk
certain material.
[6] These include the
following:
1. A
publication of the Canada Revenue Agency referred to as RC4213-Your Rights, modified
2007-06-07, which sets forth the various rights outlined in the Declaration of
Taxpayer’s Rights and how those rights may be advanced.
2. Information
Circular 1C07-1 dated May 31, 2007 which discusses at length the “Taxpayer
Relief Provisions” and the procedures to follow, including Guidelines for the
Cancellation or Waiver of Penalties and Interest.
Page: 5
3. A
short document entitled “Taxpayer Relief Provisions” – Date modified:
2007-06-04.
4. A
document entitled “Request for Taxpayer Relief”.
5. GST
Memoranda – G500-3-2-1.
6. Sections
23 to 25 of the Financial Administration Act, dealing with remissions of
tax, interest and penalties.
7. Pages
34, 35, 61, 62 and 63 of “The Fundamentals of Canadian Income Tax” – Vern
Krishna, 8th Edition, discussing taxpayer rights and the Canadian
Charter of Rights and Freedoms, inter alia.
Signed
at Ottawa, Canada this 26th day of November, 2007.
"T. O'Connor"
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