Date: 20041110
Docket: A-297-03
Citation: 2004 FCA 382
CORAM: DESJARDINS J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
DALE CLARK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Heard at Saskatoon, Saskatchewan, on November 10, 2004.
Judgment delivered from the Bench at Saskatoon, Saskatchewan, on November 10, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20041110
Docket: A-297-03
Citation: 2004 FCA 382
CORAM: DESJARDINS J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
DALE CLARK
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Saskatoon, Saskatchewan, on November 10, 2004)
EVANS J.A.
[1] This is an application for judicial review of a decision of a Judge of the Tax Court dismissing an appeal by Dale Clark from a Goods and Services Tax assessment under the Excise Tax Act, R.S.C. 1985, c. E-15, for the period January 1, 1996 to December 31, 1997: Clark v. The Queen, 2003 TCC 306.
[2] The assessment was based on the sale by Mr. Clark of two properties in Saskatoon, which he had built: 2314 Kenderdine Road, which he sold in 1996, and 214 Coben Crescent, which he sold in 1997. Mr. Clark and his family moved into the Kenderdine property on its completion in 1995, and into the Coben property in 1996 when it was completed.
[3] Counsel for the Crown conceded that GST should have been assessed under the self-supply rules in subsection 191(1) of the Act on the completion of the properties, not on their subsequent sale. Accordingly, the Kenderdine property, which was completed in 1995, could not be assessed in the 1996-1997 period which is the subject of the present proceedings. Accordingly, the assessment was legally defective because it was based on the sale of the property in 1996. Similarly, the assessment of the Coben property should not have been based on its sale in 1997, but on its completion in 1996, which is, of course, within the assessment period to which this application relates.
[4] On the other hand, Mr. Clark did not persuade us that the Judge erred in rejecting his argument that, because he had occupied the properties on completion primarily as his place of residence, they were exempt from the GST self-supply rule in subsection 191(1) by virtue of subsection 191(5). Between 1995 and 1998, Mr. Clark, who had admitted that he was a builder, had built five houses and sold four of them.
[5] For these reasons, the application will be allowed, the decision of the Tax Court set aside, and the matter remitted to the Minister for redetermination and reassessment in accordance with these reasons. Mr. Clark will be entitled to his disbursements in this Court and in the Tax Court, in the amount of $150.00.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-297-03
STYLE OF CAUSE: DALE CLARK v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: SASKATOON, SASKATCHEWAN
DATE OF HEARING: NOVEMBER 10, 2004
REASONS FOR JUDGMENT OF THE COURT:
(DESJARDINS, EVANS AND PELLETIER JJ.A.)
RENDERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
Mr. Dale Clark FOR THE APPLICANT
ON HIS OWN BEHALF
Mr. Lyle Bouvier FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Dale Clark FOR THE APPLICANT
Saskatoon, Saskatchewan ON HIS OWN BEHALF
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Saskatoon Regional Office
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