Docket: A-313-13
Citation:
2014 FCA 154
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CORAM:
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DAWSON J.A.
TRUDEL J.A.
NEAR J.A.
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BETWEEN:
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BURG PROPERTIES LTD.
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Appellant
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and
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HER MAJESTY THE QUEEN
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on June 10, 2014).
DAWSON J.A.
[1]
For reasons delivered orally on July 4, 2013, in
court files 2013-97(IT)G and 2011-2468(GST)G, a judge of the Tax Court of
Canada:
a)
quashed appeals brought by the appellant, Burg
Properties Ltd., from reassessments made under the Excise Tax Act,
R.S.C. 1985, c. E-15 for its reporting periods ending February 28, 2007, April
30, 2007 and April 30, 2008; and
b)
quashed appeals brought by the appellant from
reassessments made under the Income Tax Act, R.S.C. 1985, c. 1 for its
2007, 2008 and 2009 taxation years.
[2]
The appeals were quashed on the basis that the
appellant had entered into a settlement agreement with the Canada Revenue
Agency in which it was agreed that if the Minister of National Revenue
reassessed the appellant in accordance with the terms of the settlement
agreement, the appellant waived its rights of objection and appeal. The Tax
Court of Canada found that the Minister reassessed the appellant in accordance
with the terms of the settlement agreement so that the appellant had waived his
rights of objection and appeal.
[3]
This is an appeal from the order of the Tax
Court that quashed the notices of appeal.
[4]
The terms of the settlement agreement did not
set out the final amounts the appellant owed. Rather, the agreement set out how
various amounts at issue were to be increased or decreased on the final
reassessment.
[5]
On this appeal, the appellant argues that the
settlement agreement contemplated that the adjustments were to be made to items
set out in original and amended tax returns filed by the appellant.
[6]
The respondent denies this and states that the
settlement agreement contemplated that the adjustments were to be made to the
amounts the Canada Revenue Agency reported in its reassessment of the
appellant.
[7]
We are of the view that this appeal must fail for
the following reasons.
[8]
First, on this appeal the appellant largely
reargued the merits of his position. However, as explained to its counsel, it
is not the role of this Court to re-weigh evidence or reconsider submissions.
We are confined to searching for an error of fact, mixed fact and law or error
of law that warrants intervention in accordance with the standards articulated
in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[9]
The appellant failed to establish any such
error.
[10]
Second, the letter that accompanied the
settlement agreement stated:
We have completed our
review of the above Notices of Objection. As a result of our review, we are
prepared to offer the following settlement offer without prejudice with respect
to the reassessments of the corporate income tax returns […] and the GST
returns […].
[11]
This expressly advised the appellant that, if
accepted, the adjustments would be applied to the reassessments which resulted
from the audit and which were the subject of notices of objection.
[12]
Third, the terms of the waiver provide:
I will waive any right
of objection or appeal in respect of any and all issues relating to the above
Notices of (Re)Assessments if Canada Revenue Agency reassesses the income tax
returns and the GST returns as follows:
[13]
Again, this clearly advised the appellant that
the adjustments would be applied to the amounts set out in the notices of
reassessment.
[14]
Fourth, the terms of the settlement agreement
included the cancellation of gross negligence penalties. Such penalties were imposed
in the reassessments that gave rise to the notices of objection, not in the
appellant’s amended tax returns.
[15]
Finally, section 152 of the Income Tax Act
and section 299 of the Excise Tax Act provide that the Minister is not
bound by any return provided by a taxpayer and that assessments, subject to
being vacated or reassessed, are deemed to be valid and binding. In the light
of this statutory regime there is no reason to believe that the Minister would enter
into a settlement agreement that varied a non-binding tax return when she had
already made a reassessment which was valid and binding on issuance.
[16]
It follows that the Judge made no error when he
quashed the appeals.
[17]
For these reasons, the appeal will be dismissed
with costs.
“Eleanor R. Dawson”
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