Date: 20010524
Docket: 2001-410-GST-I
BETWEEN:
MORLEY & LORRAINE PICKERING,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Hamlyn, J.T.C.C.
[1]
This is an appeal from an assessment under Part IX of the
Excise Tax Act (the "Act") in respect of
Goods and Services Tax ("GST") assessment number
0018001871237006[1], filed on January 31, 2001.
[2]
The Appellants filed an application for the amount of $6,137.03
which was received by the Minister of National Revenue (the
"Minister") on June 26, 2000. The application was with
respect to a new housing rebate of the GST.
[3]
By Notice of GST assessment numbered 0018001871237006 and dated
July 20, 2000, the Minister notified the Appellants that
their application had been disallowed.
FACTS
[4]
The Appellants engaged in the construction of a residential
complex, that was a single unit residential complex for use as
their primary place of residence, located at 264 Old Orchard
Road, Carrying Place, Ontario (the "complex").
[5]
Construction of the complex was substantially completed on or
around September 3, 1997. The Appellants did submit however that
as of September 3, 1997 they had not started a proposed
basement apartment and the landscaping was not complete.
[6]
The Appellants occupied the complex as their primary place of
residence on or around September 30, 1997.
[7]
The Appellants were the first individuals to occupy the complex
after the construction was begun.
[8]
The Appellants filed an application and the Minister received the
said application on June 26, 2000.
[9]
The application was filed on or after April 23, 1996.
ANALYSIS
[10]
Subsection 256(3) of the Act requires an application for
an owner-built residential complex to be filed within two years
after the earlier of the day the complex is first occupied after
its construction has begun or the day ownership is transferred to
another person without the complex having been occupied and the
day construction of the complex is substantially completed.
[11] The
wording of this provision is clear. If an application is not
filed within two years after the earliest of the date the house
is first occupied, the date the ownership is transferred and the
date the construction is substantially complete, then the rebate
cannot be granted.
[12] In this
case, I conclude the house was substantially completed at the
time of occupancy notwithstanding landscaping was not complete
and the basement was not finished in terms of creating an
apartment. Indeed, at the date of hearing, the proposed basement
apartment still has not been addressed.
[13] The
Appellants failed to file their application within the two-year
period.
[14] The
Appellants received misinformation about the filing of an
application for a new housing GST rebate. The information came
from their builder after the work was completed. It is indeed an
unfortunate set of facts because if the Appellants had filed on
time they probably would be entitled to the rebate. The words of
Judge Beaubier in Meechan (J.) v. Canada, [1999] G.S.T.C.
117 is apt because of its similarity:
This is a case that deserves sympathy ... Nonetheless,
subsec. 256(3) is clear and direct.
[15] This
Court does not have remedial legislative or inherent powers to
assist the Appellants.
DECISION
[16] The
appeal is dismissed.
Signed at Ottawa, Canada, this 24th day of May 2001.
"D. Hamlyn"
J.T.C.C.
Email this Content