Rip,
T.CJ.:
—
Counsel
for
the
Minister
of
National
Revenue
has
brought
a
motion
before
this
Court
to
dismiss
the
appeal
of
Ben
Martens
on
the
basis
that
the
assessment
of
federal
tax
of
the
appellant
for
1984
is
nil
with
the
consequence
that
there
is
no
amount
of
federal
tax
in
controversy.
The
appellant
Ben
Martens
is
a
farmer.
In
filing
his
income
tax
return
for
1984
he
elected
in
accordance
with
section
119
of
the
Income
Tax
Act
("Act")
to
average
his
income
from
farming
for
the
purposes
of
determining
income
tax
payable
for
1984.
The
appellant
argued
the
four
immediately
preceding
years
for
which
he
filed
income
tax
returns
were
1979,
1980,
1982
and
1983
and
those
years
only
are
to
be
included
in
the
averaging
calculation.
He
was
of
the
view
that
since
his
1981
tax
return
had
been
filed
late
and
no
federal
tax
was
payable,
1981
ought
not
to
be
included
as
one
of
the
four
immediately
preceding
years
for
averaging
purposes.
The
Minister
reassessed
on
the
basis
that
the
1981
taxation
year
is
to
be
included,
and
1979
omitted,
in
the
averaging
claculation
pursuant
to
section
119.
As
a
result
of
including
income
from
1981
and
deleting
1979's
income,
the
resulting
tax
averaging
calculation
reduces
the
appellant's
investment
tax
credit
available
for
1984
and
subsequent
years.
The
federal
tax
reassessed
by
the
Minister
for
1984
was
nil.
The
appellant
does
not
dispute
the
assessment
of
tax.
However
he
does
not
agree
with
the
Minister's
calculation
of
refundable
investment
tax
credit
deemed
to
have
been
paid
by
him
on
account
of
his
tax
liability
pursuant
to
subsection
127.1(1)
which
resulted
in
the
nil
tax
assessment.
In
the
appellant's
view
the
amount
of
the
refundable
investment
tax
credit
was
$3,361.71;
in
the
respondent's
view,
the
amount
is
$2,366.24.
The
appellant
has
thus
appealed
the
assessment.
Counsel
for
the
respondent
argued
that
no
appeal
lies
from
a
nil
assessment.
If
the
Minister
and
the
taxpayer
dispute
the
determination
of
the
refundable
investment
tax
credit
in
1984,
then
in
a
future
year,
when
tax
is
assessed
because
the
Minister’s
determination
of
the
amount
of
credits
being
less
than
that
of
the
taxpayer
results
in
income,
the
dispute
can
be
resolved
by
the
Courts.
This
problem
is
one
of
timing
in
his
view.
Counsel
for
the
appellant
submitted
that
the
subject
assessment
is
a
different
"category"
of
assessment
from
the
nil
assessment
the
Supreme
Court
of
Canada
held
is
not
appealable
in
Okalta
Oils
Limited
v.
M.N.R.,
[1955]
C.T.C.
271;
55
D.T.C.
1176,
followed
by
the
Federal
Court
of
Appeal
in
The
Queen
v.
Bowater
Mersey
Paper
Company
Limited,
[1987]
2
C.T.C.
159;
87
D.T.C.
5382.
His
alternative
argument
was
that
the
subject
assessment
is
not
a
nil
assessment.
In
my
view
subsections
152(1)
and
152(1.2)
support
the
appellant's
right
to
appeal
the
subject
assessment.
Subsections
152(1)
and
152(1.2)
reads
as
follows:
152
(1)
The
Minister
shall,
with
all
due
dispatch,
examine
a
taxpayer's
return
of
income
for
a
taxation
year,
assess
the
tax
for
the
year,
the
interest
and
penalties,
if
any,
payable
and
determine
(a)
the
amount
of
refund,
if
any,
to
which
he
may
be
entitled
by
virtue
of
sections
129,
131,
132
or
133
for
the
year,
or
(b)
the
amount
of
tax,
if
any,
deemed
by
subsection
119(2),
120(2),
122.2(1),
127.1(1),
127.2(2),
or
144(9)
to
have
been
paid
on
account
of
his
tax
under
this
Part
for
the
year.
152
(1.2)
The
provisions
of
paragraphs
56(1)(l)
and
60(0),
this
Division
and
Division
J,
as
they
relate
to
an
assessment
or
a
reassessment
and
to
assessing
and
reassessing
tax,
are
applicable,
with
such
modifications
as
the
circumstances
require,
to
a
determination
or
redetermination
and
to
determining
and
redetermining
amounts
under
this
Division,
except
that
subsections
(1)
and
(2)
are
not
applicable
to
determinations
made
under
subsection
(1.1)
and,
for
greater
certainty,
an
original
determination
of
a
taxpayer's
non-capital
loss,
net
capital
loss,
restricted
farm
loss
or
farm
loss
for
a
taxation
year
may
be
made
by
the
Minister
only
at
the
request
of
the
taxpayer.
Subsection
127.1(1)
provides
the
means
by
which
the
taxpayer
is
deemed
to
pay
an
amount
on
account
of
tax
equal
to
his
refundable
investment
tax
credit
for
the
year.
The
Minister,
in
accordance
with
paragraph
152(1)(b),
determines
the
amount
of
tax
deemed
to
be
paid
for
the
year.
If
the
taxpayer
does
not
agree
with
the
Minister’s
determination
of
the
amount
of
tax
deemed
to
be
paid
he
has
the
right
to
object
to
and
appeal
the
determination:
subsection
152(1.2)
grants
the
taxpayer
the
right
to
apply
the
provisions
of
Divisions
I
and
J
of
the
Act,
which
provide,
inter
alia,
for
the
rights
to
object
to
an
assessment
of
tax
and
to
appeal
such
an
assessment,
or
a
determination,
other
than
a
determination
made
under
subsection
152(1.1).
Amounts
to
be
determined
by
the
Minister
include
the
determination
of
an
amount
of
tax
deemed
by
subsection
127.1(1)
to
have
been
paid
on
account
of
tax
under
Part
I
of
the
Act
for
the
year.
In
the
matter
at
bar
the
Minister
has
determined
the
amount
of
the
refundable
investment
tax
credit
in
1984
to
be
$2,366.24
and
the
appellant
wishes
to
appeal
from
this
determination.
The
appellant
has
the
right
under
the
provisions
of
subsection
152(1.2)
to
contest
the
determination
of
the
Minister
by
filing
a
notice
of
objection
in
the
manner
provided
by
section
165
and,
if
not
satisfied
with
the
Minister's
decision
in
respect
of
the
objection,
file
a
notice
of
appeal
in
the
manner
provided
by
section
169.
This
the
appellant
has
done.
He
need
not
wait
for
a
future
taxation
year
to
dispute
the
determination.
The
motion
is
dismissed.
Motion
dismissed.
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