Citation: 2005TCC263
Date: 20050421
Docket: 2004-367(IT)G
2004-1977(IT)G
BETWEEN:
DIETER HARDTKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Lamarre,
J.
[1] The respondent brought a first
motion under section 53 of the Tax Court of Canada Rules (General Procedure)
("Rules") for an order striking out paragraphs 13
through 16, paragraphs 18 through 22, paragraph 25, paragraphs 30 through
32 and paragraph 37 of the Amended Notice of Appeal, the portion of paragraph
38 thereof that reads "and sections 15, 11 and 1 of the Canadian
Charter of Rights and Freedoms" ("Charter") and
subparagraphs 39(b) and (c) thereof (for the appeals filed under the Income
Tax Act ("ITA") with respect to the taxation years 1994
through 2000 inclusively under 2004‑367(IT)G). The respondent filed
another motion under section 53 of the Rules for an order striking out paragraph 13
and subparagraphs 16(b) and (c) of the Notice of Appeal (for an appeal filed under
the ITA with respect to the 2002 taxation year under 2004-1977(IT)G).
[2] Section
53 of the Rules reads as follows:
Striking
out a Pleading or other Document
53. The
Court may strike out or expunge all or part of a pleading or other document,
with or without leave to amend, on the ground that the pleading or other
document,
(a) may prejudice or
delay the fair hearing of the action,
(b) is scandalous, frivolous
or vexatious, or
(c) is an abuse of the
process of the Court.
[3] In those paragraphs of the
Amended Notice of Appeal (file 2004‑367(IT)G) that the first motion seeks
to have struck out, the appellant mainly alleges that the Minister of National
Revenue ("Minister") acted improperly during the course of the audit
process and in doing so infringed his rights under the Charter. The
appellant therefore seeks an order from this Court vacating on that basis the
reassessments under appeal. The respondent says that even if the appellant is
entitled to relief relating to his allegations against the Minister, such
relief must be sought elsewhere than before this Court. The appellant also
requests an order from this Court directing the Minister to reduce or remove
the late-filing penalties and interest assessed against him and to either refund
or set off against his tax debt any amount owed to him. This is the subject of
the second motion (file 2004-1977(IT)G) and of part of the first motion (file
2004-367(IT)G).
[4] The respondent sets out five
reasons for bringing these motions:
(1) section
53 of the Rules allows the Court to strike out a portion of the
pleadings on the basis that they disclose no reasonable cause of action;
(2) the
allegations concerning the Minister's actions in processing the assessments are
irrelevant to the question of whether, in filing his tax returns for the 1995
through 1998 taxation years, the appellant made a misrepresentation that is
attributable to neglect, carelessness or wilful default and to the question of whether
the Minister correctly computed the appellant's tax payable for the 1995 through
2000 taxation years in accordance with the ITA;
(3) the
allegations of infringement of the appellant's rights under the Charter
cannot give rise to a remedy that may be ordered by this Court in the
circumstances of these appeals;
(4) this
Court does not have jurisdiction to grant an order directing the Minister to
reduce or remove the late-filing penalties and interest assessed against the
appellant; and
(5) this
Court does not have jurisdiction to grant an order directing the Minister to
refund or set off an amount with respect to a tax debt.
[5] In the respondent's view, all of
the allegations in question are frivolous or vexatious and constitute an abuse
of the process of this Court and as such may prejudice or delay the fair
hearing of the action, as they are irrelevant to the issue in the appeals in
that they do not disclose a reasonable cause of action that falls within the jurisdiction
of the Tax Court of Canada.
[6] The appellant, on the other
hand, argues that for the Court to strike out pleadings under section 53 of the
Rules, it must find "(1) that the pleading [is] so clearly futile
that it does not have the slightest chance to succeed and (2) that the pleading
has no rational basis and does not provide any evidence" (Nelson v.
Canada (Customs & Revenue Agency), [2002] 1 C.T.C. 66) (see appellant's
Factum, Part II, paragraph 16). In the appellant's view, this Court cannot
strike out a pleading pursuant to section 53 on the basis that it
discloses no reasonable cause of action, as it can under section 58 of the Rules,
which provision is not being relied upon by the respondent.
[7] In his Amended Notice of
Appeal (file 2004-367(IT)G), the appellant explains, among other things, that
he is part of a group of approximately 200 clients (the vast majority being
chiropractors, like the appellant) of an accountant who was accused by the
Canada Customs and Revenue Agency ("CCRA") of being negligent in
committing certain irregularities in the preparation of his clients' income tax
returns. As a result of identifying this large group of individuals, the CCRA
decided to develop and implement a standardized approach in dealing with the
individual taxpayers, which took approximately four years. The appellant
submits that this policy decision caused him extreme prejudice because the four-year
delay preceding the reassessment against him resulted in enormous amounts of
penalties and interest. It also precluded him from defending himself because he
is now unable to provide his computerized accounting records, which were found,
after this four-year lapse of time, to be corrupted and unrecoverable through
no fault of his.
[8] The appellant adds that during
the delay, which in his view is solely attributable to the CCRA's actions, the
CCRA at no time prior to the expiration of the normal reassessment period
sought to preserve any right to reassess him. Nor was any request made for the
purpose of obtaining a waiver pursuant to subparagraph 152(4)(a)(ii) of
the ITA.
[9] In the appellant's view, the
Tax Court of Canada is a court of competent jurisdiction within the meaning of
subsection 24(1) of the Charter and is thus empowered to grant an appropriate
remedy where, as submitted in this case, delay has impaired the taxpayer's
ability to effectively challenge the reassessment, resulting in a breach of the
taxpayer's rights under the Charter. The appellant seeks an order from
this Court vacating the reassessments on the basis that the CCRA, in reassessing
the appellant pursuant to an impersonal standardized methodology, has violated section 15
of the Charter, which provides that every individual is equal before and
under the law and has the right to the equal protection and equal benefit of
the law without discrimination. The appellant submits that because he was
identified as a member of an identifiable group of individuals, he was
discriminated against by being denied his right to individualized treatment by
the CCRA without undue or unreasonable delay. As a consequence, he relies on
sections 15, 11 and 1 of the Charter and asks this Court to, among other
things: vacate the reassessments on that basis (file 2004‑367(IT)G);
direct the Minister to reduce or remove the penalties and interest assessed against
the appellant; and order the Minister to repay him all amounts determined in these
appeals to have been overpaid, with pre-judgment and post-judgment interest
(see Amended Notice of Appeal, paragraphs 37 and 38 and subparagraphs 39(b) and
(c) in file 2004-367(IT)G; and Notice of Appeal, paragraph 13 and
subparagraphs 16(b) and (c) in file 2004-1977(IT)G).
Relevant
Charter Provisions
Constitution Act,
1982
Schedule B to the Canada
Act 1982 (U.K.)
PART 1
CANADIAN CHARTER OF
RIGHTS AND FREEDOMS
Whereas Canada is
founded upon principles that recognize the supremacy of God and the rule of
law:
Guarantee of Rights
and Freedoms
1.
The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law
as can be demonstrably justified in a free and democratic society.
. . .
Legal Rights
. . .
11. Any person
charged with an offence has the right
(a) to be informed without
unreasonable delay of the specific offence;
(b) to be tried within
a reasonable time;
. . .
Equality Rights
15. (1) Every
individual is equal before and under the law and has the right to the equal
protection and equal benefit of the law without discrimination and, in
particular, without discrimination based on race, national or ethnic origin,
colour, religion, sex, age or mental or physical disability.
(2) Subsection
(1) does not preclude any law, program or activity that has as its object the amelioration
of conditions of disadvantaged individuals or groups including those that are
disadvantaged because of race, national or ethnic origin, colour, religion,
sex, age or mental or physical disability.
. . .
Enforcement
24. (1) Anyone
whose rights or freedoms, as guaranteed by this Charter, have been infringed or
denied may apply to a court of competent jurisdiction to obtain such remedy as
the court considers appropriate and just in the circumstances.
(2) Where, in
proceedings under subsection (1), a court concludes that evidence was obtained
in a manner that infringed or denied any rights or freedoms guaranteed by this
Charter, the evidence shall be excluded if it is established that, having
regard to all the circumstances, the admission of it in the proceedings would
bring the administration of justice into disrepute.
(1) Jurisdiction of the Tax Court of Canada to
Strike Out Pleadings
[10] The respondent asserts that
section 53 of the Rules allows the Court to strike out pleadings, or a
portion of pleadings, on the basis that they disclose no reasonable cause of
action. Although section 53 of the Rules does not provide specifically
for such an action, the Court has jurisdiction pursuant to section 53 to strike
out a pleading that may prejudice or delay the fair hearing of the action, that
is frivolous or vexatious or that is an abuse of the process of the Court. In Nelson,
supra, the Federal Court of Canada, Trial Division found a pleading to
be frivolous and vexatious where it was so futile that it did not have the
slightest chance of success. Furthermore, a court has the inherent jurisdiction
to stay actions that are an abuse of process or that disclose no reasonable
cause of action (see Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, at
page 968). Similarly, a court has the inherent jurisdiction to strike out a
portion of a pleading if it discloses no reasonable defence. This is based on
the following statement by the Supreme Court of Canada in Hunt, supra,
at page 970:
. . . the rule was derived
from the courts' power to ensure both that they remained a forum in which
genuine legal issues were addressed and that they did not become a vehicle for
"vexatious" actions without legal merit designed solely to harass
another party.
[11] The courts have agreed,
however, that a high standard must be met in order to strike out a pleading.
Indeed, it must be plain and obvious, or beyond a reasonable doubt, that the pleading
in question discloses no reasonable cause of action (see Hunt, supra,
at page 980 and Dumont v. Canada (Attorney General), [1990] 1 S.C.R. 279, at page 280).
[12] So the question here is, is it
plain and obvious that the relief sought by the appellant discloses no
reasonable cause of action that falls within the jurisdiction of this Court?
(2) Jurisdiction to Review the Exercise of Power by
the Minister in Issuing the Reassessment
[13] With
respect to the allegations concerning the Minister's actions, for which the
appellant now seeks an order from this Court vacating the assessments on the
basis that these actions precluded him from adequately defending himself, I
agree with the respondent that this does not fall within the jurisdiction of
this Court. The Tax Court of Canada's jurisdiction is limited by the ITA and
the Tax Court of Canada Act, R.S.C. 1985, c. T-2 ("TCC Act")
as amended. The TCC Act grants the Court exclusive original jurisdiction
with respect to references and appeals arising under the ITA. The main
right of appeal is set out in section 169 of the ITA, which provides
for an appeal to the Tax Court of Canada from an assessment that has been
objected to under section 165 of the ITA. Here, one of the appellant's arguments
challenges the process that the Minister used in reassessing the appellant. The
case law clearly establishes that the right to appeal to the Tax Court of
Canada is limited to appealing the tax due and does not include appealing the
manner in which this amount was determined. If the tax due is correctly
calculated in light of validly enacted provisions of the ITA, then the
assessment must be upheld.
[14] The recent decision in Main
Rehabilitation Co. Ltd. v. Her Majesty the Queen, 2004 FCA 403
(aff'g 2003TCC454, leave to appeal to the Supreme Court of Canada requested),
confirms that the Tax Court of Canada does not have jurisdiction to review the
actions of the Minister. A unanimous Bench reiterated at paragraphs 7 and 8:
[7] . . . Courts have
consistently held that the actions of the CCRA cannot be taken into account in
an appeal against assessments.
[8] This is because what is
in issue in an appeal pursuant to section 169 is the validity of the assessment
and not the process by which it is established (see for instance The Queen
v. The Consumers' Gas Company Ltd. 87 D.T.C. 5008 (F.C.A.) at page 5012).
Put another way, the question is not whether the CCRA officials exercised their
powers properly, but whether the amounts assessed can be shown to be properly
owing under the Act (Ludco Enterprises Ltd. v. R. [1996] 3 C.T.C. 74
(F.C.A.) at p. 84).
[15] Consequently, a taxpayer cannot
appeal the manner in which tax was assessed, but must restrict an appeal to the
issue of whether the amount assessed is correct in light of the ITA.
This was also stated by the Federal Court of Appeal in Webster v. Canada,
[2003] F.C.J. No. 1569 (Q.L.), 2003 FCA 388, at paragraph 21, as
follows:
I would add that
the right to appeal an income tax assessment to the Tax Court is a substantial
one. The mandate of the Tax Court is to decide, on the basis of a trial at
which both parties will have the opportunity to present documentary and oral
evidence, whether the assessments under appeal are correct in law, or not. If
the assessments are incorrect as a matter of law, it will not matter whether
the objection process was flawed. If they are correct, they must stand even if
the objection process was flawed.
[16] Here, the appellant's allegations
concerning the manner in which evidence was gathered by the officers of the Minister
are not intended to challenge the admissibility of the respondent's evidence (at
least, that is not what was pleaded). In raising these allegations, the
appellant is rather seeking substantive relief, that is, to have the
reassessments vacated outright. Given the case law cited above, it seems plain
and obvious that the appellant would not succeed at trial in obtaining this
relief, even if the facts upon which the claim depends were established to be
true (see Zelinski v. Canada, [2002] F.C.J. No. 1292 (Q.L.), 2002 FCA
330). The allegations must therefore be struck out as they contain a radical
defect which makes it plain and obvious that the action is certain to fail on
that particular issue (see Hunt, supra, at page 975).
(3) Charter Issues
[17] The appellant submits that the
conduct of the agents of the Minister in applying the statute could be found to
be in breach of the Charter. He relies on the case of Markevich v.
Canada, [2003] 1 S.C.R. 94, to point out that ". . . [p]rescriptions and limitations are enacted with the rationale
of providing certainty to an individual that with the passage of time the
individual should be secure in the individual's reasonable expectation that he
or she will not be held to account for ancient obligations. The evidentiary
rationale recognizes that evidence can become stale or lost after a period of
time and the diligence rationale encourages claimants to act diligently and not
sleep on their rights." (See appellant's Factum, paragraph 23.)
[18] In the appellant's view, there
was discrimination against a group of chiropractors who happened to be clients
of one accountant targeted by the CCRA. The discrimination consisted in the
fact that the members of this group were prejudiced by delays caused by the
actions of the Minister. The appellant refers to the case of McKinney v. University of Guelph, [1990] S.C.J. No. 122 (Q.L.),
paragraph 286, [1990] 3 S.C.R. 229, at pages 387‑88, in which the
Supreme Court of Canada said that "the nature of discrimination is such
that attitudes rather than laws or rules may be the source of the
discrimination. . . . Given that discrimination is frequently perpetuated,
unwittingly or not, through rather informal practices, it would be altogether
inconceivable that they should be treated as insufficient to trigger the
application of s. 15."
[19] Be that as it may, if there is
a finding of discrimination due to the actions of the Minister, only a court of
competent jurisdiction will be able to grant a remedy with regard to the Charter
issue concerning those actions. Indeed, subsection 24(1) of the Charter
does not create courts of competent jurisdiction. It merely vests additional
powers in courts which are already found to be competent independently of the Charter.
A court has the power to grant a remedy under subsection 24(1) only when it
has jurisdiction, conferred by statute, over the person and the subject matter and,
in addition, has authority to make the order sought (see Mills v. The Queen,
[1986] 1 S.C.R. 863, at pages 890 and 960). As mentioned above, the Tax Court
of Canada has jurisdiction only over the assessment of the tax due, and not
over the process under which it is assessed.
[20] Here, the appellant is not
arguing that the legislation itself offends section 15 of the Charter,
but maintains rather that the Minister's actions violate section 15. Accordingly,
a subsection 24(1) remedy cannot be granted by this Court on the grounds of a
breach of section 15 of the Charter by the Minister in his
administrative capacity as tax collector, since the Court does not have
jurisdiction over the subject matter of that portion of the appeal. Therefore,
even if a breach did occur, this Court has no jurisdiction to remedy such a
breach.
[21] As indicated by the Federal
Court of Appeal in Sinclair v. The Queen, 2003 DTC 5624, at
paragraph 8, if the appellant wishes to challenge the Minister's actions
on the ground that they are contrary to section 15 of the Charter, he
might seek relief in the Federal Court. This statement was confirmed in Main
Rehabilitation, supra, at paragraph 10. That was a case in which the
Federal Court of Appeal rejected the argument that the decision of that same
court in O'Neill Motors Limited v. The Queen, 98 DTC 6424, supported the
proposition that an assessment can be vacated by the Tax Court of Canada in an
appeal pursuant to section 169 of the ITA where it can be shown that the
process leading to the issuance of the assessment is tainted by the breach of a
Charter right. The Federal Court of Appeal clearly specified that the O'Neill
decision merely stands for the proposition that an assessment may be vacated in
an appeal pursuant to section 169 if it is not supported by reason of the
exclusion of the evidence which led to its issuance (see Main Rehabilitation,
supra, paragraphs 11 and 13).
[22] In O'Neill, supra,
this Court had excluded evidence on the basis that it had been obtained in
breach of section 8 of the Charter, which states that everyone has the
right to be secure against unreasonable search or seizure. Here, no such search
or seizure is alleged by the appellant. The appellant submits rather that there
is a breach by virtue of the fact that he was a member of the large group of
individuals who had used the services of the same accountant whom the CCRA had
discovered made certain irregularities in preparing his clients' tax returns.
This is not a group enumerated in section 15 of the Charter, nor is it a
group constituting a discrete or insular minority. The group, whether composed
of chiropractors or of clients of the accountant in question, presents none of
the usual indicia of discrimination, such as stereotyping, historical
disadvantage or vulnerability to political or social prejudice (see Law v.
Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497).
[23] The appellant further submits
that the right to reassess a taxpayer beyond the normal reassessment period
under subsection 152(4) of the ITA is penal in nature and, as a
consequence, he should be afforded protection under section 11 of the Charter.
In particular, the appellant seeks to have the assessment vacated because his
rights under paragraphs 11(a) and (b) of the Charter have
been breached by the unreasonable delay that occurred before he was reassessed
by the Minister.
[24] For section 11 to apply, the
appellant must qualify as a "person charged with an offence". In R.
v. Wigglesworth, [1987] 2 S.C.R. 541, at page 559, Wilson J. stated that a
matter falls within section 11 of the Charter where, first, by its very
nature it is a criminal proceeding or, second, a conviction in respect of the
offence may lead to a true penal consequence (see also Martineau v. Canada
(Minister of National Revenue – M.N.R.), [2004] S.C.J. No. 58 (Q.L.), 2004
SCC 81, at paragraph 19).
[25] In Martineau, supra,
at paragraph 22, the Supreme Court of Canada reiterated what had been said in Wigglesworth,
supra, at page 560, namely, that "proceedings of an administrative --
private, internal or disciplinary -- nature instituted for the protection of
the public in accordance with the policy of a statute are not penal in
nature". The Supreme Court of Canada commented that a number of judgments
in tax matters support the conclusion that an administrative sanction is not
penal in nature (Martineau, supra, at paragraph 54).
[26] In the present case,
reassessing a taxpayer after the normal reassessment period is something that
is provided for in the ITA. With respect to such a reassessment, the
Minister has the burden of showing that the appellant has made a misrepresentation
that is attributable to neglect, carelessness or wilful default (see M.N.R.
v. Taylor, 61 DTC 1139, cited in Farm Business Consultants Inc. v. Canada,
[1994] T.C.J. No. 760 (Q.L.), aff'd in [1996] F.C.J. No. 82 (Q.L.)). The
reassessment is an administrative measure intended to provide an effective means
of enforcing the ITA. It is not a measure that is penal in nature.
[27] Furthermore, a reassessment
beyond the normal reassessment period does not lead to a true penal
consequence. Indeed, in Wigglesworth, supra, at page 561,
Wilson J. said that "a true penal consequence which would attract the
application of s. 11 is imprisonment or a fine which by its magnitude would
appear to be imposed for the purpose of redressing the wrong done to society at
large rather than to the maintenance of internal discipline within the limited
sphere of activity". Here, the appellant does not face imprisonment, and
should the reassessment be confirmed, he will not have to pay a fine. He will only
have to pay the amount of tax due under the ITA, with interest
calculated thereon. The late filing penalties are not imposed to redress a
wrong done to society at large, but are imposed simply to maintain the
effectiveness of the ITA requirements. The appellant's obligation to pay,
should the reassessments be confirmed, is clearly civil in nature and purely
economic. As a matter of law, the liability to pay tax or any amount on account
of tax does not depend on any notice of assessment but is created by statute
(see Hart v. Canada (M.N.R.), [1986] 3 F.C. 178, at page 188 (F.C.T.D.)).
Therefore, it cannot be said that the reassessment beyond the normal
reassessment period leads to true penal consequences for the appellant.
Consequently, the appellant cannot be characterized as a "person charged
with an offence" within the meaning of section 11 of the Charter.
This section does not, therefore, apply here.
Conclusion On The First Three Issues
(raised in the first motion only)
[28] In conclusion, all the allegations
of fact and law in the Amended Notice of Appeal (file 2004-367(IT)G) that are
at issue in the first motion and which refer to an alleged course of conduct
undertaken by the Minister in issuing reassessments for the appellant's 1994 to
2000 taxation years, are irrelevant to the issue before this Court and shall be
struck out. Similarly, the appellant's claims in respect of sections 1, 11, 15
and 24 of the Charter have no reasonable possibility of success and
shall also be struck out. Consequently, paragraph 13 (with the exception of the
first sentence, which is a general factual allegation), paragraphs 14, 15 and
16, paragraphs 18 through 22, paragraphs 30, 31 and 32, paragraph 37 and the
portion of paragraph 38 that reads "and sections 15, 11 and 1 of the [Charter]"
in file number 2004-367(IT)G shall all be struck out.
(4) Jurisdiction
to Waive Interest and Penalties
[29] The ITA
specifically provides that the Minister has discretion to waive interest
and penalties. Subsection 220(3.1) of the ITA states:
(3.1) Waiver
of penalty or interest. 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 (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.
[30] The case law confirms that it
is the Minister's discretion and that the appropriate court can only interfere
if the exercise of that discretion is patently unreasonable.
For example, in Adamson, Judge Mogan wrote:
¶14 The Appellant seems
to think that this Court can compel the Minister to exercise his/her discretion
under subsection 220(3.1) in a particular way. This Court has no jurisdiction
over the Minister in the proposed exercise of discretion under subsection
220(3.1). If the Appellant were to request a waiver of interest or penalties
under subsection 220(3.1), and if the Minister were to refuse the request, the
Appellant could commence a proceeding in the Federal Court to review the
Minister's exercise of discretion with respect to procedural fairness or error
of law but that proceeding would start after the Minister had actually
exercised his/her discretion under subsection 220(3.1).
¶15 In his claim with
respect to subsection 220(3.1), the Appellant is premature because he has not
yet asked for relief from interest or penalties; and he is in the wrong Court.
I will grant the Respondent's motion and strike out paragraph 8 and
subparagraph 10(ii) of the Notice of Appeal because this Court does not have
jurisdiction to compel the Minister to exercise his/her discretion under
subsection 220(3.1) in a particular way; nor does this Court have jurisdiction
to review the manner in which the discretion was exercised.
[31] Paragraph 25 and subparagraph 39(b)
of the Amended Notice of Appeal in file number 2004-367(IT)G and paragraph 13, and
subparagraph 16(b) of the Notice of Appeal in file number 2004-1977(IT)G shall
be struck out since the Court is unable to grant the relief sought.
(5) Jurisdiction of the Court to
Order Refund of Overpayment, With Pre- and Post‑Judgment Interest
[32] I agree
with the respondent that the jurisdiction of this Court to determine the
legality of the assessments at issue does not encompass the power to order the
Minister to refund or set off an amount against a tax debt (see: Neuhaus v.
Canada, [2002] F.C.J. No. 1480 (Q.L.); Toner v. M.N.R., 90 DTC 1675
(T.C.C.); and McMillen Holdings Limited v. M.N.R., 87 DTC 585). This
point is also well summarized in Guillemette v. Canada, [1997] T.C.J.
No. 589 (Q.L.), at paragraph 42, which reads as follows:
In terms of other relief
requested, the Tax Court of Canada is without jurisdiction to direct the
Minister to credit against federal tax owing by the taxpayer the amount of any
excess provincial income tax paid by the taxpayer. Further, in claiming for a
refund for overpayment of taxes, the Appellant is seeking recovery of a debt
alleged to be owing rather than relief from an assessment of tax and therefore
has not instituted an appeal from an assessment within the meaning of section
169 of the Act.
[33] Therefore,
subparagraph 39(c) of the Amended Notice of Appeal in file number 2004-367(IT)G
and subparagraph 16(c) of the Notice of Appeal in file number 2004-1977(IT)G shall
be struck out since this Court is unable to grant the relief sought.
Signed at Ottawa,
Canada, this 21st day of April 2005.
"Lucie Lamarre"
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