|
Citation: 2004TCC563
|
|
Date: 20040813
|
|
Docket: 2003-4140(GST)I
|
|
BETWEEN:
|
|
TRIPLE G CORPORATION INC.,
|
|
Appellant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
REASONS FOR ORDER
Bell, J.
[1] The Respondent filed an undated
and unsigned Notice of Motion with in the Court on January 28,
2004. The motion is
for an Order, pursuant to section 18.3002 of the Tax Court
of Canada Act that the General Procedure set out in sections
17.1, 17.2, and 17.4 to 17.8 of the Tax Court of Canada Act apply
in respect of the appeal.
[2] Counsel for the Appellant, on
February 18, 2004 filed WRITTEN SUBMISSIONS OF APPELLANT RE:
NOTICE OF MOTION FOR GENERAL PROCEDURE TO APPLY. That document
states that:
The Appellant does not dispute that the Respondent's
request shall be granted by this Court if the Court is satisfied
the request was made within 60 days of the day of the Notice of
Appeal was transmitted by this Court to the Respondent, which day
the Appellant understands to be December 1, 2003.
It further states that:
If this Court was also in receipt of the Notice of Motion on
January 28, 2004 that the Appellant does not dispute that the
Respondent will have met the necessary deadline in order for this
Court to grant such Order.
[3] By letter of March 1, 2004
Appellant's counsel wrote to the Court asking for an
opportunity to respond to the written representations of the
Respondent and asking for a telephone conference hearing
respecting same. That hearing took place by telephone on March
25, 2004.
[4] During the telephone conference,
Appellant's counsel did not resist the Respondent's
motion to have the General Procedure Rules apply to the appeal.
His position, pursuant to section 18.3002(3) of the Tax Court
of Canada Act ("TCC Act"), is that this Court
should order all reasonable and proper costs of the Appellant be
borne by the Respondent on the basis that, within the meaning of
section 18.3002(3) the "amount in dispute" does not
exceed $7,000.
[5] Appellant's counsel said that
the total amount in dispute was $21,319. Respondent's counsel
said that there would be an adjustment to that by virtue of the
Minister having allowed an input tax credit of $436.19.[1]
[6] Appellant's counsel took the
position that the "amount in dispute" was not the
cumulative amount of the total of reporting periods but that each
reporting period must be looked at separately. He stated that
there were 12 reporting periods and that there were, therefore,
12 appeals.
[7] After much prolonged discussion
counsel agreed that the amount in dispute in respect of each of
two notices of assessment was less than $7,000.
[8] Appellant's counsel said:
... we do not dispute that if net tax for purposes of
that paragraph is determined by reference to something other than
a reporting period, that we are over that $7,000 threshold.
[9] Counsel also agreed that only
"net tax" was in issue.
ANALYSIS:
[10] There follows the appropriate portions
of pertinent legislation:
Tax Court of Canada Act
18.3002 (1) Where the Attorney General of
Canada so requests, the Court shall order that sections 17.1,
17.2 and 17.4 to 17.8 apply in respect of an appeal in respect of
which sections 18.3003 and 18.3007 to 18.302 would otherwise
apply.
...
(3) The Court shall, on making an order under subsection (1),
order that all reasonable and proper costs of the person who has
brought the appeal be borne by Her Majesty in right of Canada
where
...
(c) in the case of an appeal under Part IX of the
Excise Tax Act, the amount in dispute does not
exceed $7,000 and the aggregate of supplies for the prior
fiscal year of the person did not exceed $1,000,000.
2.2(2) For the purposes of this Act, the "amount in dispute"
in an appeal means
...
(c) in the case of an appeal under Part IX of the Excise
Tax Act,
(i) the amount of tax, net tax and rebate, within the meaning
of that Part, that is in issue in the appeal,
(ii) any interest or penalty under that Part that is in issue
in the appeal, and
(iii) any amount of tax, net tax or rebate, within the meaning
of that Part, that is likely to be affected by the appeal in any
other appeal, assessment or proposed assessment of the person who
has brought the appeal.
Excise Tax Act
296(1) The Minister may assess
(a) the net tax of a person under Division V for a
reporting period of the person,
(b) any tax payable by a person under Division II,
IV or IV.1,
(c) any penalty or interest payable by a person under
this Part,
(d) any amount payable by a person under any of
paragraphs 228(2.1)(b) and (2.3)(d) and section 230.1, and
(e) any amount which a person is liable to pay or remit
under subsection 177(1.1) or Subdivision a or b.1 of Division
VII,
and may reassess or make an additional assessment of tax, net
tax penalty, interest or an amount referred to in paragraph (d)
or (e).
300.(1)After making an assessment, the Minister shall
send to the person assessed a notice of the assessment.
300.(2)A notice of assessment may include assessments
in respect of any number or combination of reporting periods,
transactions, rebates or amounts payable or remittable under this
Part.
302. Where a person files a
notice of objection to an assessment and the Minister sends to
the person a notice of a reassessment or an additional
assessment, in respect of any manner dealt with in the notice of
objection, the person may, within ninety days after the day the
notice of reassessment or additional assessment was sent by the
Minister,
(a) appeal
therefrom to the Tax Court; or
(b) where an
appeal has already been instituted in respect of the matter,
amend the appeal by joining thereto an appeal in respect of the
reassessment or additional assessment in such manner and on such
terms as the Tax Court directs.
306. A person who has filed a
notice of objection to an assessment under this Sub-division may
appeal to the Tax Court to have the assessment vacated or a
reassessment made after either
(a) the
Minister has confirmed the assessment or has reassessed, or
(b) one
hundred and eighty days have elapsed after the filing of the
notice of objection and the Minister has not notified the person
that the Minister has vacated or confirmed the assessment or has
reassessed,
but no appeal under this section may be instituted after the
expiration of ninety days after the day notice is sent to the
person under section 301 that the Minister has confirmed the
assessment or has reassessed.
[11] From the foregoing it is clear that if
the amount in dispute under subsection 18.3002(3) of the TCC Act
is less than $7,000 this Court is obliged to make an Order in
respect of the General Procedure applying that all reasonable and
proper costs of the Appellant be borne by the Respondent.
[12] Under subsection 2.2(2) the
"amount in dispute" is the amount of net tax that is in
issue in the appeal.
[13] Under subsection 296(1) of the
Excise Tax Act ("ET Act") the Minister may
assess the net tax of a person for a reporting period.
[14] Under section 300 of the ET Act the
Minister shall send a notice of such assessment to the person
assessed and such notice of assessment may include assessments in
respect of any number or combination of reporting
periods.
[15] Under section 306 of the ET Act a
person who has filed a notice of objection to an assessment
which has been confirmed by the Minister of National Revenue may
appeal to this Court to have the "assessment" vacated
or reassessed.
[16] The Appellant has appealed each of the
three reassessments. It has been agreed that the amount in
dispute in respect of each of two of those reassessments was less
than $7,000. In respect of the third assessment, the cumulative
amount is in excess of $7,000. There is no appeal from a
reporting period. There is an appeal from an assessment. It
follows, therefore, that the Respondent is responsible for the
reasonable and proper costs of the Appellant with respect to the
first two of such reassessments. It is not so responsible in
respect of the reassessment covering ten reporting periods.
Signed at Ottawa, Canada this 13th day of August, 2004.
Bell, J.
Email this Content