Citation: 2006TCC93
Date: 20060216
Docket: 2005-1898(IT)I
BETWEEN:
715476 ALBERTA LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, J.
[1] This appeal pursuant to the Informal Procedure was heard at Calgary, Alberta, on February 10, 2006. The Appellant's (715476) accountant, Carrie Elliott, was the only witness.
[2] Paragraphs 4 to 14 inclusive of the Reply to the Notice of Appeal set out the matters in dispute. They read:
...
4. In filing the income tax returns for the 1998, 1999 and 2000 taxation years, the Appellant reported taxable income of nil, $2,873.00 and nil, respectively and claimed refunds of $1,443.00, $3,476.00 and $2,927.00, respectively.
5. The Minister of National Revenue (the "Minister") assessed the Appellant's income tax returns for the 1998, 1999 and 2000 taxation years as filed except that the refunds were not issued as the Appellant did not file the income tax returns within three years from the end of the respective reporting periods. The Nil Notices of Assessment for the 1998 and 2000 taxation years were dated June 29, 2004 and August 3, 2004, respectively, and the Notice of Assessment for the 1999 taxation year was dated June 29, 2004.
6. The Appellant filed a Notice of Objection to those assessments, dated September 22, 2004.
7. By letter dated November 15, 2004, the Minister informed the Appellant that, with respect to the 1998 and 2000 taxation years:
(a) The Federal Court of Appeal has ruled that no appeal could be taken from a notification that no tax is payable (nil assessment). Therefore they could not consider the objection under the appeal provisions of the Income Tax Act (hereinafter the "Act") for the 1998 and 2000 taxation years; and
(b) the objection for the 1998 and 2000 taxation years would be held and looked at in conjunction with the 1999 tax year objection.
8. A request was not made, in respect of the Appellant, under subsection 152(1.1) of the Act to have the Minister determine the amount of the losses for the 1998 and 2000 taxation years.
9. The Minister confirmed the assessments by means of a Notice of Confirmation, which was undated but mailed to the Appellant with a letter dated March 2, 2005.
10. In so assessing the Appellant for the 1998, 1999 and 200 taxation years and in so confirming the assessment for the 1999 taxation year, the Minister made the following assumptions of fact:
(a) during the 1998, 1999 and 2000 taxation years the Appellant was in receipt of patronage dividends from the Prairie Feed Co-operative Ltd. from which tax deductions at source were withheld, ad detailed as follows:
|
Year
|
Patronage Dividend
|
Tax Deducted
|
|
|
|
|
|
1998
|
$ 9,717.86
|
$1,442.68
|
|
1999
|
25,786.00
|
3,852.96
|
|
2000
|
19,612.00
|
2,926.80
|
(b) the fiscal periods for the Appellant for the 1998, 1999 and 2000 taxation years were from January 1 to December 31;
(c) the income tax returns for the Appellant for the 1998, 1999 and 2000 taxation years were required to be filed within 6 months after the end of the fiscal periods of the Appellant;
(d) the periods that are 3 years from the end of the fiscal periods of the Appellant for the 1998, 1999 and 2000 taxation years are as follows: :
|
Fiscal Period Ending
|
3 year period
|
|
|
|
|
December 31, 1998
|
December 31, 2001
|
|
December 31, 1999
|
December 31, 2002
|
|
December 31, 2000
|
December 31, 2003
|
(e) the income tax returns for the 1998 and 1999 taxation years of the Appellant were filed on May 24, 2004, reporting taxable income of nil and $2,873.00, respectively;
(f) the income tax return for the 2000 taxation year of the Appellant was filed on May 31, 2004 reporting nil taxable income;
(g) income tax returns of the Appellant for the 1998, 1999 and 2000 taxation years were filed claiming refunds of $1,443.00, $3,476.00 and $2,927.00 for the 1998, 1999 and 2000 taxation years, respectively;
(h) income tax returns of the Appellant for the 1998, 1999 and 2000 taxation years were assessed with tax payable of nil, $377.00 and nil, respectively;
and
(i) the Appellant was not entitled to refunds of $1,443.00, $3,476.00 and $2,927.00 for the 1998, 199 and 2000 taxation years, respectively.
B. ISSUE TO BE DECIDED
11. The issues are:
(a) whether the appeals for the 1998 and 2000 taxation years are valid; and
(b) whether the appellant is entitled to the refunds of $1,443.00, $3,476.00 and $2,927.00 for the 1998, 1999 and 2000 taxation years, respectively.
C. STATUTORY PROVISIONS, GROUNDS RELIED ON AND RELIEF SOUGHT
12. He relies on sections 152, 165 and 169 and subsections 150(1), and 164(1) of the Act, as amended for the 1998, 1999 and 2000 taxation years.
13. He submits that as the Appellant did not make a request under subsection 152(1.1) of the Act to have the Minister determine the amount of the losses for the 1998 and 2000 taxation years, the Appellant could not properly serve a Notice of Objection on the Minister under section 165 of the Act for those years and as such, the appeals for the 1998 and 2000 taxation years are not properly before the Courts pursuant to section 169 of the Act.
14. He submits that as the income tax returns of the Appellant for the 1998, 1999 and 2000 taxation years were not filed within 3 years from the end of the respective reporting period, as required by subsection 164(1) of the Act, the appellant is not entitled to the refunds of $1,443.00, $3,476.00 and $2,927.00 for the 1998, 1999 and 2000 taxation years, respectively.
[3] The evidence confirmed the statements in the Reply.
[4] In particular, the Appellant filed its Income Tax Returns as an ordinary for profit business corporation, but all these returns were filed too late and, in the case of 1998 and 2000, the assessments were "nil".
[5] For 2000, the Income Tax Return showed $1.00 in tax amount, but on assessment, this was rounded by the Respondent to "nil". This would warrant a further review which would only be obiter, since the Income Tax Return was filed too late in any event.
[6] For these reasons, the appeals are dismissed.
Signed at Saskatoon, Saskatchewan, this 16th day of February 2006.
"D.W. Beaubier"
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