Percy v. The Queen, docket 97-3155(GST)I (Informal Procedure)

97-3155(GST)I

BETWEEN:

HOLLY PERCY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeal heard on June 4, 1998 at Victoria, British Columbia, by

the Honourable Judge D.W. Beaubier

Appearances

Agent for the Appellant:                       Lloyd Ridout

Counsel for the Respondent:                Brent Paris

JUDGMENT

          The appeal from the assessment made under the Excise Tax Act, notice of which is dated July 15, 1996 and bears number 952690930129P0006, is dismissed in accordance with the attached Reasons for Judgment.

Signed at Ottawa, Canada this 18th day of June 1998.

"D.W. Beaubier"

J.T.C.C.

Date: 19960618

Docket: 97-3155(GST)I

BETWEEN:

HOLLY PERCY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Beaubier, J.T.C.C.

[1]      This appeal pursuant to the Informal Procedure was heard at Victoria, British Columbia on June 4, 1998. The Appellant's husband, Lloyd Ridout, was the only witness.

[2]      Paragraphs 3 to 5 inclusive of the Reply to the Notice of Appeal read:

3.          In prescribed form the Appellant applied for a rebate of Goods and Services Tax ("GST") pursuant to subsection 256(2) of the Excise Tax Act, R.S.C. 1985, c. E-15, as amended inter alia by S.C. 1990 c. 45 and 1993 c. 27, (the "Act") in the amount of $1,116.21 (the "Rebate") on September 19, 1995.

4.          By Notice of Assessment No. 952690930129P0006 dated July 15, 1996, the Minister of National Revenue (the "Minister") assessed the Appellant pursuant to subsection 297(1) of the Act to deny the Appellant's application for the Rebate.

5.          In so assessing the Appellant, the Minister relied on, inter alia, the following assumptions of fact:

(a)         in 1990, the Appellant began construction of a single unit residential complex (the "House") on Lot 22, Pl 49657, Section 29, Highland District, in Victoria, B.C. for use as the Appellant's primary place of residence;

(b)         the Appellant first occupied the House in September, 1991;

(c)         the House was substantially completed no later than December 31, 1991; and

(d)         the Appellant did not apply for the Rebate prior to September 19, 1995.

[3]      The appeal is in respect to a denial of Holly Percy's claim for the New Home Rebate of the GST. Mr. Ridout testified that he and his wife built their home at 418 Quail Place, Victoria, British Columbia. In April, 1992 they received a temporary occupancy permit and moved into the house with their children and furniture.

[4]      At that time it had floor coverings and drywall, outside windows and doors and baseboard heating. The siding, deck, mouldings, window casings and stains remained to be done. Mr. Ridout stated that by October, 1993 the home was still less than 80% complete. On October 31, 1994, the house was "passed". Holly Percy applied for the rebate on September 19, 1995 when she had all of the receipts. Her claim was denied on July 15, 1996.

[5]      The Reply assumes that the house was substantially completed no later than December 31, 1991. That is wrong. On the evidence, occupancy occurred in April, 1992. They had an occupancy permit from the municipal authorities in April, 1992. This fact refutes Mr. Ridout's testimony that the house was less than 80% complete by October, 1993. On the evidence, finishing work remained to be done after April, 1992. The evidence was not clear as to whether a stairway had to be put in or merely finished.

[6]      On the basis of Mr. Ridout's testimony, occupancy of the house occurred in April, 1992. Thus the two year period for rebate application under section 256 of the Excise Tax Act began then. The Appellant did not apply for the Rebate until September 19, 1995, after the two year period had expired.

[7]      For this reason, the appeal is dismissed.

Signed at Ottawa, Canada this 18th day of June 1998.

"D.W. Beaubier"

J.T.C.C.

COURT FILE NO.:                             97-3155(GST)I

STYLE OF CAUSE:                           Holly Percy and The Queen

PLACE OF HEARING:                      Victoria, British Columbia

DATE OF HEARING:                        June 4, 1998

REASONS FOR JUDGMENT BY:     The Honourable Judge D.W. Beaubier

DATE OF JUDGMENT:                     June 18, 1998

APPEARANCES:

Agent for the Appellant:             Lloyd Ridout

Counsel for the Respondent:      Brent Paris

COUNSEL OF RECORD:

For the Appellant:

Name:                

Firm:                 

For the Respondent:                  George Thomson

                                                Deputy Attorney General of Canada

                                                          Ottawa, Canada