Aumuller v. The Queen, docket 2000-2865-IT-APP

Date: 20010621

Docket: 2000-2865-IT-APP

BETWEEN:

KARA AUMULLER,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order

Bell, J.T.C.C.

[1]            The Applicant instituted a motion for:

a)              An Order granting an abridgment of the time for service and hearing of the within Notice of Motion;

b)             An Order for leave to amend the Notice of Appeal filed herein dated May 26, 1998;

c)              An Order extending the time for reconsideration of the Judgment pronounced herein by the Honorable (sic) R.D. Bell dated November 9, 1999;

d)             An Order reconsidering the Judgment pronounced herein by the Honorable (sic) R.D. Bell dated November 9, 1999;

e)              An Order varying or amending the Judgment pronounced herein by the Honorable (sic) R.D. Bell dated November 9, 1999;

f)              Such further and other relief as this Honorable (sic) Court may permit.

FACTS:

[2]            The Applicant was assessed under section 323(1) of the Excise Tax Act which provided that where a corporation failed to remit an amount of net tax as required by section 228(2), the directors of the corporation at the time the corporation was required to remit that amount were jointly and severally liable, together with the corporation, to pay that amount and any interest and penalties relating thereto.

[3]            A Notice of Decision sent by Revenue Canada to the Applicant stated that the Applicant's objection to that assessment was disallowed and that the assessment was confirmed on February 26, 1998.

[4]            Also, the Applicant filed a Notice of Objection to an assessment under the Income Tax Act with respect to similar liability under that Act. Notification of Confirmation by the Minister, dated February 26, 1998, was forwarded to the Applicant.

[5]            The Applicant filed a Notice of Appeal dated May 26, 1998, the opening portion of which reads as follows:

TAKE NOTICE THAT Kara Aumuller appeals to the Court from Notice of Assessment - Third Party (Goods and Services Tax) dated August 28, 1997 for the quarterly period April 1, 1995 to June 30, 1996.

[6]            The only reference to the Income Tax Act in the Notice of Appeal appears in paragraph 19 which reads as follows:

The Appellant relies on Section 227.1(3) of the Income Tax Act.

[7]            No separate Notice of Appeal was filed with respect to the income tax Notification of Confirmation referred to above.

[8]            Upon receipt of the aforesaid Notice of Appeal in the Toronto registry of this Court, a court official requested from Appellant's counsel a copy of the Notice of Decision. Appellant's counsel, on that day, sent by facsimile to the court official a copy of the Notice of Decision and of the Notification of Confirmation.

[9]            The Appellant, in a letter dated March 25, 1998 to Revenue Canada wrote:

We are instructed to tender to you a Bank Draft No. 29853238-054 from the Bank of Canada in favour of Revenue Canada in the sum of $23,500.00 in payment of your demand.

This cheque is tendered under protest by Kara Aumuller. Ms Aumuller disputes your demand and the claim made against her and will be filing an appeal.

It appears clear that the aforesaid sum was paid in respect of both the GST and income tax assessments.

[10]          A Consent to Judgment was signed by counsel for the Appellant on October 29, 1999 and by counsel for the Respondent on November 1, 1999. This Consent was presented to this Court following which a Judgment implementing the terms of that Consent was issued on November 9, 1999 reading as follows:

Upon reading the Consent to Judgment filed;

The appeal from the assessment made under the Excise Tax Act, notice of which is dated August 28, 1997 and bears number 24863 is allowed, without costs, and the assessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the terms of the attached Consent to Judgment.

[11]          On or about May 26, 2000 Appellant's counsel received the sum of $21,527.61 from the Minister in returning the assessed amount, penalties and interest paid to the Minister pursuant to the Excise Tax Act. Shortly after that, it became apparent to Appellant's counsel that the Notice of Appeal omitted reference to the Notification of Confirmation by the Minister pursuant to the Income Tax Act. An affidavit of a member of Appellant's counsel's firm described this omission as inadvertent. Appellant's counsel then, pursuant to the provisions of the Income Tax Act, filed an application for the extension of time within which a Notice of Appeal could be filed. Appellant's counsel, at the hearing of this motion, stated that it was abandoning that application because it was made after the date on or before which it could be made.

[12]          With respect to the motion, Appellant's counsel in seeking an amendment to the Notice of Appeal, directed the Court's attention to paragraph 19 of the Notice of Appeal, to the due diligence section of the Income Tax Act, to the fact that the court official received both the Notice of Decision, and the Notification of Confirmation after requesting a copy of the Notice of Decision, and to the reference in the letter to Revenue Canada about appealing both matters. He submitted that the Notice of Appeal cried out for amendment, it being clear that it was intended to appeal both matters.

ANALYSIS AND CONCLUSION:

[13]          There are provisions in each of the Excise Tax Act and Income Tax Act under which appeals may be commenced. The Notice of Appeal above referred to was specifically described as a Notice of Appeal filed pursuant to the Excise Tax Act. A filing fee was paid in respect thereof. No Notice of Appeal was filed pursuant to the provisions of the Income Tax Act and, obviously, no filing fee was paid to the Court.

[14]          I have concluded that the Notice of Appeal cannot be amended as requested by the Appellant. The Notice of Appeal clearly referred to the GST matter only. A Consent to Judgment was prepared in respect of that Notice of Appeal relating to GST only. A Judgment was then issued by this Court with respect to GST only. That matter is closed. In any event, it is not possible to add an income tax matter to a GST Notice of Appeal as the procedure for filing an income tax appeal is clearly set out in the Income Tax Act, the Tax Court of Canada Act and the Tax Court of Canada Rules. As that procedure was not followed, the motion fails.

Signed at Ottawa, Canada this 21st day of June, 2001.

"R.D. Bell"

J.T.C.C.

COURT FILE NO.:                                                 2000-2865(IT)APP

STYLE OF CAUSE:                                               Kara Aumuller v. Her Majesty the Queen

PLACE OF HEARING:                                         Winnipeg, Manitoba

DATE OF HEARING:                                           May 31, 2001

REASONS FOR JUDGMENT BY:      The Honourable Judge R.D. Bell

DATE OF JUDGMENT:                                       June 21, 2001

APPEARANCES:

Counsel for the Appellant: Martin S. Corne, Q.C.

Counsel for the Respondent:              Tracy Harwood-Jones

COUNSEL OF RECORD:

For the Appellant:                

Name:                      Martin S. Corne, Q.C.

Firm:                        Corne & Corne

                                                                                                Winnipeg,Manitoba

For the Respondent:                             Morris Rosenberg

                                                                                Deputy Attorney General of Canada

                                                                                                Ottawa, Canada

2000-2865(IT)APP

BETWEEN:

KARA AUMULLER,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Application heard on May 31, 2001 at Winnipeg, Manitoba, by

the Honourable Judge R.D. Bell

Appearances

Counsel for the Applicant:                             Martin S. Corne, Q.C.

Counsel for the Respondent:                         Tracy Harwood-Jones

ORDER

          Upon motion by Applicant's counsel for:

(a)       an Order granting an abridgment of the time for service and hearing of the within Notice of Motion;

(b)     an Order for leave to amend the Notice of Appeal filed herein dated May 26, 1998;

(c)      an Order extending the time for reconsideration of the Judgment pronounced herein by the Honourable R.D. Bell dated November 9, 1999;

d)       An Order reconsidering the Judgment pronounced herein by the Honourable R.D. Bell dated November 9, 1999; and

e)        An Order varying or amending the Judgment pronounced herein by the Honourable R.D. Bell dated November 9, 1999;

          And upon hearing counsel for the parties;

          This Court orders that the motion is denied and the application for an extension of time within which an appeal may instituted is dismissed in accordance with the attached Reasons for Order.

Signed at Ottawa, Canada this 21st day of June, 2001.

"R.D. Bell"

J.T.C.C.