Date: 20010516
Dockets: 2000-3425-GST-I; 2000-3426-GST-I; 2000-3437-GST-I
BETWEEN:
PACIFIC VENDING LTD., FEDER INTERNATIONAL DISTRIBUTING CORP.,
PACIFIC COAST VIDEO ENTERTAINMENT INC.,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________
Agents for the
Appellants:
Samuel Feder and Mark Meredith
Counsel for the
Respondent:
Jasmine Sidhu
____________________________________________________________
Reasons for Judgment
(delivered orally from the Bench on February 12, 2001 at
Vancouver, British Columbia)
Campbell, J.
[1]
These three matters were heard together as the issue was common
to all three. Counsel agreed that there was no dispute respecting
the facts and as such no evidence was called.
[2]
The issue is simply whether interest is payable to the Appellants
on a remission of taxes pursuant to a remission order entitled
"Coin-Operated Devices Remission Order" made pursuant
to subsection 23(2) of the Financial Administration Act.
All amounts were paid prior to April 1996.
[3]
Briefly, by way of background each of these three companies were
GST registrants. They own and operate amusement arcades and
machines. On April 14, 1998, Pacific Coast Video
Entertainment filed a GST rebate application for tax paid in
error. On April 14, 1998, Pacific Vending Ltd. also filed a GST
rebate application for tax paid in error. On March 4, 1999, the
Governor General in Council issued the "Coin-Operated
Devices Remission Order". On October 7, 1999, the third
Appellant, Feder International Distributing, then filed an
application for remission of taxes pursuant to this Order. In
March 2000, each of these companies were paid a refund being a
remission of GST pursuant to this Remission Order. The Order did
not provide for the payment of interest to each of the Appellants
(reference Tab 9 of the Respondent's Book of
Authorities).
[4]
The Appellants here do not contest the amount of the rebate but
argue that the rebates should be subject to interest being
payable by the Minister.
[5] I
agree with Judge Lamarre Proulx's comments in Pachanos v.
M.N.R., 90 DTC 1668, where she stated that a remission
order relates to procedure for collecting taxes that are owing
and unpaid and not to the assessment of tax.
[6]
Remission Orders are dealt with in section 23 of the Financial
Administration Act. Section 12 of the Tax Court of Canada
Act lists the various Acts over which this Court has
exclusive original jurisdiction to hear and determine appeals.
The Financial Administration Act is not listed in this
section. However, the Coin Operated Devices Remission Order
specifically refers to subsection 23(2) of the Financial
Administration Act in its opening paragraph.
[7] I
have reviewed the relevant provisions of the Excise Tax
Act and in particular section 296 but unfortunately I must
conclude there is no avenue under the Act that this Court
can take to vary a remission order. The order contains no right
of appeal or interest payable provisions. A remission order is a
discretionary animal of the Minister and I must agree with the
Respondent that this Court has no jurisdiction under the
Financial Administration Act to grant the Appellants what
they are asking. The amounts of the rebates here are substantial
and it is unjust that the Minister has had the use of these
monies for a period of time without the payment of interest.
However, I do not have the jurisdiction to give the Appellants
the relief they seek. There is no statutory authority which would
authorize me to direct the Minister to pay interest to the
Appellants on the refunds. I cite Judge Rip of this Court in
McMillen Holdings Limited v. M.N.R., 87 D.T.C. 585 at page
591, as follows:
...The Minister may notify the taxpayer of any interest due to
him in the notice of assessment. If, however, the Minister does
not make such refund at the time of mailing the notice of
assessment the taxpayer has four years from the end of the
taxation year to apply for such refund. But the determination,
calculation or amount of refund and the interest resulting from
any overpayment of tax do not constitute the assessment of tax,
interest or penalty although the question of interest is
determined in the assessment process and may be indicated on the
notice of assessment. However, the notice of assessment is not
the assessment. In my view the appellant at bar is not appealing
from any assessment of income tax or interest but is asking the
Court to make a direction to order the Minister of National
Revenue to make a payment of interest.
[8]
Section 309 of the Excise Tax Act sets out this
Court's jurisdiction on hearing appeals and the Court may
dismiss or allow and vacate the assessment or refer the
assessment back to the Minister for reconsideration and
reassessment. An assessment by its nature is a determination of
liability of a taxpayer. As Judge Rip stated in
McMillen:
...An amount of money owed to the taxpayer by the Crown on
account of interest is not an amount which is subject to an
assessment or an assessed amount of money.
[9]
The only issue here is one of interest on a refund under a
Remission Order made pursuant to the Financial Administration
Act. Regretfully, I must advise the Appellants that this
Court lacks the jurisdiction to provide the relief sought.
[10] The
appeals are therefore dismissed.
Signed at Ottawa, Canada, this 16th day of May 2001.
"Diane Campbell"
J.T.C.C.
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