Docket: 2006-1615(GST)G
BETWEEN:
GLENKO PROPERTIES INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on October 9, 2007 at Saskatoon, Saskatchewan
Before: The Honourable
D.W. Beaubier, Deputy Judge
Appearances:
|
Counsel for the Appellant:
|
Owen
B. Griffiths
|
|
Counsel for the Respondent:
|
Karen Janke
|
____________________________________________________________________
JUDGMENT
The Motion of the Respondent is granted and the
purported Notice of Appeal is dismissed in its entirety in accordance with the
attached Reasons for Judgment.
Signed at Toronto, Ontario this 15th
day of October, 2007.
Beaubier,
D.J.
Citation: 2007TCC612
Date: 20071015
Docket: 2006-1615(GST)G
BETWEEN:
GLENKO PROPERTIES INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, D.J.
[1] This is a Motion by
the Respondent originally dated June 29, 2007 to dismiss the Appellant’s Notice
of Appeal dated November 29, 2005. The Notice of Appeal was filed in the Court
on December 1, 2005 and given the above described 2006 number.
[2] The Motion is
granted respecting Notices of Confirmation of Assessments 3502 and 68940 under
the Excise Tax Act because they are not assessments of the Appellant.
[3] The third
assessment purportedly appealed is described as follows:
b) …
1) Assessment # 17986, Goods
and Services Tax Act;
There is no “Goods and Services Tax Act”; the
other two assessments were described as under the Excise Tax Act and
this appeal was given Tax Court number 2006-1615 with a GST suffix. Such Court
numbers are supposed to issue in chronological succession no matter what
suffix. The problems with this one which was filed in 2005 are unknown to this
judge.
[4] The alleged appeal
was filed on a timely basis pursuant to subsection 169(1) of the Income
Tax Act because, while it was before the date of the Notice of Confirmation
(January 13, 2006), it was filed more than six months after the date of the
Notice of Assessment #17986, April 14, 2005.
[5] The question is
whether the Notice of Appeal respecting Assessment #17986 is a nullity in
view of the description in subparagraph b) 1 and the contents of the Notice of
Appeal.
[6] There was no timely
application for an extension of time to appeal Assessment #17986 despite
Respondent counsel’s timely letters to two counsel of the Appellant urging an
application for an extension. After all time for such an application expired,
on January 5, 2007 the Appellant’s second counsel filed an amending document
correcting the words “Goods and Services Tax Act” in subparagraph b) 1) to
the description in the Notice of Assessment dated April 14, 2005, namely Income Tax Act.
But you cannot amend a nullity.
[7] In a Reply dated
January 15, 2007, the Respondent correctly described the particulars and Notice
of Confirmation.
[8] The only reference
to the Income Tax Act in the original Notice of Appeal is in paragraph
c) 4). Under the heading “c) Material facts relied upon” it states:
4) The appellant pleads and the
fact is that the assessments made pursuant to the Income Tax Act and the
Excise Tax Act were unjust, without foundation in fact or law, and
failed to properly consider information and evidence provided by the taxpayer;
[9] Rule 21 of the Tax
Court of Canada Rules (General Procedure) describes how a proceeding “shall
be instituted” in an appeal from an assessment under the Income Tax Act.
It refers to Form 21(1)(a). Paragraphs a) and b) of Form 21(1)(a) read:
NOTICE OF APPEAL
(a) In the case of an individual state
home address in full and in the case of a corporation state address in full of
principal place of business in the province in which the appeal is being
instituted,
(b) Identify the assessment(s) under
appeal: include date of assessment(s) and, if the appeal is under the Income
Tax Act, include taxation year(s) or, if the appeal is under the Excise
Tax Act, the Customs Act, the Air Travellers Security Charge Act
or the Excise Act, 2001, include the period to which the assessment(s)
relate(s),
[10] The purported Notice
of Appeal filed on December 1, 2005 did not state (1) the pertinent date of
assessment, (2) that it was under the Income Tax Act, or (3) the
taxation year or years.
[11] The Appellant’s
counsel was notified of various deficiencies in this document by a clerk of the
Tax Court and by counsel for the Respondent. Nothing was done within the time set
out in the Income Tax Act.
[12] This Court adopts
the reasoning of Sheridan, J. of this Court in Tuck v. R., 2007 CarswellNat 2138 respecting
the Respondent’s allegation that the alleged Notice of Appeal is phrased
scandalously and vexatiously. More important, however, is the fact that this
Notice of Appeal did not comply with Rule 21 respecting Assessment #17986. It
is a nullity without the two additional, but mistaken allegations about the Excise
Tax Act in paragraph (b). The Notice of Appeal’s reference in b) 1) to the
“Goods and Services Tax Act” was not to anything within the jurisdiction of
this Court. It is a nullity.
[13] The Motion of the
Respondent is granted and the purported Notice of Appeal is dismissed in its
entirety.
Signed at Toronto, Ontario this 15th day
of October, 2007.
Beaubier,
D.J.
CITATION: 2007TCC612
COURT FILE NO.: 2006-1615(GST)G
STYLE OF CAUSE: Glenko Properties Inc. v. The Queen
PLACE OF HEARING: Saskatoon,
Saskatchewan
DATE OF HEARING: October 9, 2007
REASONS FOR JUDGMENT BY: The
Honourable D.W. Beaubier,
Deputy
Judge
DATE OF JUDGMENT: October 15, 2007
APPEARANCES:
|
Counsel for the
Appellant:
|
Owen B. Griffiths
|
|
Counsel for the
Respondent:
|
Karen Janke
|
COUNSEL OF RECORD:
For the Appellant:
Name: Owen B. Griffiths
Firm: Amicus
Law Associates
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Canada
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