Docket: 1999-778(IT)I
BETWEEN :
SUCCESSION ANDRÉE JALBERT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
__________________________________________________________________
Appeal called for
hearing on April 7, 2008, at Montreal, Quebec.
Before: The Honourable Justice
Louise Lamarre Proulx
Appearances:
|
Agent for the Appellant:
|
André Dupras
|
|
Counsel for the Respondent :
|
Philippe
Dupuis
Simon Petit
|
____________________________________________________________________
JUDGMENT
The
appeal of the assessment established under the Income Tax Act for
the 1988 taxation year is dismissed, in accordance with the attached Reasons
for Judgment.
Signed at Ottawa, Canada, this 23rd day of
April 2008.
"Louise Lamarre Proulx"
Translation
certified true
on this 22nd day
of May 2008.
Elizabeth Tan,
Translator
Citation: 2008TCC235
Date: 20080423
Docket: 1999-778(IT)I
BETWEEN:
ESTATE OF ANDRÉE JALBERT,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1]
This appeal concerns the 1988
taxation year. It is another case dealing with so‑called scientific
research and experimental development companies.
[2]
The Agent for the Appellant
immediately informed the Court that he was not there to challenge the basis of
the appeal. He withdrew but asked for a fair decision, if possible.
[3]
He stated that the Appellant, who
became his wife after the year in question, died in 1998 from breast cancer. He
explained that it was only recently that he was made aware of the assessment
against his wife. He spoke of the kind-heartedness of the Appellant and her
charity work, which was her main priority, perhaps to the detriment of her
inome tax.
[4]
Regarding this
application for a decision based on fairness and compassion, the Court
explained to the Agent for the Appellant that there was no provision in the Income
Tax Act (the "Act") that would allow for the substantive tax law
to be set aside for fairness reasons. TheCourt must judge according to the Act.
However, there is a provision in the Act that would allow the Minister of
National Revenue (the "Minister") to waive the interest and penalites
for these reasons, at subsection 220(3.1) of the Act. The court with jurisdiction
to review the exercise of the Minister's power regarding this provision is the
Federal Court of Canada.
[5]
However, for the Agent for the
Appellant's information, the following is the relevant subsection of the Act
and the history of this section:
220(3.1) Waiver of penalty or interest -- The Minister may, on or before the day
that is ten calendar years after the end of a taxation year of a taxpayer (or
in the case of a partnership, a fiscal period of the partnership) or on
application by the taxpayer or partnership on or before that day, waive or
cancel all or any portion of any penalty or interest otherwise payable under
this Act by the taxpayer or partnership in respect of that taxation year or
fiscal period, and notwithstanding subsections 152(4) to (5), any assessment of
the interest and penalties payable by the taxpayer or partnership shall be made
that is necessary to take into account the cancellation of the penalty or
interest.
History:
Subsection 220(3.1) was replaced by S.C. 2005, c. 19, subs. 48(1),
applicable as of 2005. However, if a taxpayer or a partnership makes an
application to the Minister of National Revenue under subsection 220(3.1)
for a taxation year or fiscal period, this subsection is considered to be
worded as follows for that taxation year or fiscal period:
(3.1) The Minister may waive or cancel, in whole or in
part, any penalty or interest otherwise payable under this Act by a taxpayer or
partnership in respect of a taxation year or fiscal period, and
nothwithstanding subsections 152(4) to (5), any assessment of the interest
and penalties payable by the taxpayer or partnership shall be made that is
necessary to take into account the cancellation of the penalty or interest.
This subsection previously stated:
(3.1) The Minister may at any time waive or cancel all
or any portion of any penalty or interest otherwise payable under this Act by a
taxpayer or partnership and, notwithstanding subsections 152(4) to 152(5), such
assessment of the interest and penalties payable by the taxpayer or partnership
shall be made as is necessary to take into account the cancellation of the
penalty or interest.
Subsection 220(3.1) was amended by S.C. 1994,
c. 7, Sch. VIII, subs. 127(2) applicable for the 1985 and
subsequent taxation years. Subsection 220(3.1)
previously read:
(3.1) The Minister may at any time waive or cancel all
or any portion of any penalty or interest otherwise payable under this Act by a
taxpayer or partnership.
Subsection 220(3.1) was added by S.C. 1994,
c. 7, Sch. II, subs. 181(1), applicable to penalties and
interest regarding the 1985 and
subsequent taxation years.
[6]
The Information Circular on this
section is numbered IC 98‑1R2.
[7]
As the Agent for the Appellant
discontinued his appeal and since this Court does not have the power to render
decisions on any basis other than the Act, the appeal must be dismissed.
Signed
at Ottawa, Canada, this 23rd day of April 2008.
"Louise
Lamarre Proulx"
Translation certified true
on this 22nd day of May 2008.
Elizabeth Tan, Translator
CITATION: 2008TCC235
COURT FILE NO.: 1999-778(IT)I
STYLE OF CAUSE: ESTATE OF ANDRÉE JALBERT AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: April 7, 2008
REASONS FOR JUDGMENT BY: The
Honourable Justice Louise Lamarre Proulx
DATE OF JUDGMENT: April 23, 2008
APPEARANCES:
|
Agent for the
Appellant:
|
André Dupras
|
|
Counsel for the Respondent:
|
Philippe Dupuis
Simon Petit
|
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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