Teitelbaum,
J.:—Plaintiff
(Stromotich)
is
bringing
a
motion
seeking
an
order
directing
the
defendant
to
refund
to
him
a
business
investment
tax
credit
(B.I.T.C.)
on
scientific
research
as
claimed
by
him
on
his
income
tax
returns
for
the
year
1983.
Plaintiff
requests,
in
his
motion,
that
I
order
Her
Majesty
the
Queen,
to
pay
to
him
$2,618.21
representing
the
B.I.T.C.
for
the
year
1983
plus
interest
from
April
1984
when
the
plaintiff
was
to
have
paid
his
income
taxes,
the
whole
within
21
days
from
the
date
of
the
order.
In
order
to
better
understand
the
circumstances
of
the
present
motion,
I
believe
it
is
necessary
to
briefly
state
the
facts
surrounding
this
particular
plaintiff
in
his
dealings
with
the
representatives
of
the
defendant.
The
plaintiff,
in
a
statement
of
claim
filed
in
the
Federal
Court
of
Canada
on
March
3,
1986,
states
that
“he
conducts
a
successful
multi-national
scientific
research
business,
funded
entirely
from
his
own
resources".
As
a
result
of
this
the
plaintiff
is
of
the
belief
that
he
is
entitled
to
a
Business
Investment
Tax
Credit
on
Scientific
Research.
Plaintiff
claims
that
by
a
notice
of
assessment
dated
December
31,
1984
he
was
denied
this
tax
credit
for
the
years
1978
to
1983
in
the
amount
of
$7,689.60.
As
was
plaintiff’s
right
he
appealed
the
decision
and
was
finally
accorded
a
hearing
in
the
Tax
Court
of
Canada.
The
appeal
of
the
plaintiff
to
the
Tax
Court
of
Canada
for
the
1983
taxation
year
concerning
the
B.I.T.C.
was
heard
by
Judge
Sarachuk
who,
on
December
4,
1985
rendered
the
following
order:
It
is
ordered
and
adjudged
that
the
Appeal
from
an
assessment
of
income
tax
for
the
1983
taxation
year
be
and
the
same
is
hereby
allowed
and
the
assessment
referred
back
to
the
Respondent
for
reconsideration
and
reassessment
on
the
basis
that
the
Appellant
is
entitled
to
the
benefit
of
a
business
investment
tax
credit
in
the
amount
of
$1,310.33
carried
forward
from
the
1978
to
1981
taxation
years,
inclusive,
which
will
be
applied
in
accordance
with
the
Appellant’s
directions.
In
all
other
respects
the
assessment
is
maintained.
This
decision
was
appealed
by
plaintiff
when
he
filed
his
statement
of
claim
on
March
3,
1986
in
the
Registry
of
the
Federal
Court
of
Canada.
The
defendant
has
filed
a
defence
to
the
statement
of
claim
and
nothing
further
was
done
except
for
a
motion
by
plaintiff
dated
July
10,
1986
wherein
the
plaintiff
requested
an
order
from
the
Federal
Court
requiring
the
defendant
to
refund
to
plaintiff
the
B.I.T.C.
as
ordered
by
the
Tax
Court
of
Canada
in
case
#85-658.
The
motion
was
adjourned
on
July
17,
1986
without
a
new
date
being
fixed
for
a
hearing.
Plaintiff
now
brings
the
present
motion.
The
plaintiff
informed
me
that
he
is
not
making
his
request
for
payment
under
subsection
164(1.1)
of
the
Income
Tax
Act.
He
is
also
unable
to
tell
me
in
virtue
of
what
rule
or
law
he
is
making
the
present
motion.
I
am
of
the
belief
that
even
if
the
plaintiff
had
requested
his
refund
in
virtue
of
subsection
164(1.1)
he
could
not
do
so.
Subsection
164(1.1)
states:
164(1.1)
Repayments
on
objections
and
appeals.
Subject
to
subsection
(1.2),
where
a
taxpayer
(a)
has
under
section
165
served
a
notice
of
objection
to
an
assessment
and
the
Minister
has
not
within
120
days
after
the
day
of
service
confirmed
or
varied
the
assessment
or
made
a
reassessment
in
respect
thereof,
or
(b)
has
appealed
from
an
assessment
to
the
Tax
Court
of
Canada
or
to
the
Federal
Court
—
Trial
Division,
otherwise
than
pursuant
to
subsection
172(1),
and
has
applied
in
writing
to
the
Minister
for
a
payment
or
surrender
of
security,
the
Minister
shall
with
all
due
dispatch
repay
all
amounts
paid
on
account
of
the
amount
assessed
or
surrender
security
accepted
therefor
to
the
extent
that
(c)
the
lesser
of
(i)
the
aggregate
of
the
amounts
so
paid
and
the
value
of
the
security,
and
(ii)
the
amount
so
assessed
exceeds
(d)
the
amount,
if
any,
so
assessed
that
is
not
in
controversy.
I
agree
with
the
attorney
for
the
defendant
when
he
states
that
a
refund
may
be
requested
by
a
taxpayer
while
he
appeals
his
assessment
to
the
Tax
Court
of
Canada
or
to
the
Federal
Court
of
Canada
under
certain
specific
conditions
as
provided
by
the
Income
Tax
Act.
In
the
present
case
the
plaintiff
appealed
to
the
Tax
Court
of
Canada.
A
decision
was
rendered
on
December
4,
1985.
I
believe
that
once
a
decision
is
rendered
by
the
Court,
either
the
Tax
Court
of
Canada
or
the
Federal
Court,
Trial
Division,
whichever
the
taxpayer
had
chosen,
he
can
no
longer
ask
for
a
repayment
on
filing
objections
and
appeal
under
subsection
164(1.1)
of
the
Income
Tax
Act.
The
fact
that
the
taxpayer
is
appealing
the
decision
of
the
Tax
Court
of
Canada
to
a
higher
court
(Federal
Court
of
Canada,
Trial
Division)
does
not,
in
my
view
allow
the
plaintiff
to
request
a
refund.
The
taxpayer's
right
to
a
refund
ended
with
the
decision
of
the
Court
hearing
the
first
appeal
from
the
notice
of
assessment,
in
this
case,
the
Tax
Court
of
Canada.
The
plaintiff
informs
me
that
the
reason
he
is
before
me
on
the
motion
is,
after
stating
that
he
is
presently
in
appeal
to
the
Federal
Court
for
the
1983
taxation
year,
and
I
quote,
“but
that
does
not
cause
money
to
flow
and
that
is
why
I
am
here”.
The
plaintiff
requests
that
I
order
the
defendant
to
pay
him
money
by
way
of
motion
“‘because
it
is
much
faster".
I
cannot
do
so,
I
cannot
grant
the
request
by
plaintiff.
I
cannot
condemn,
by
way
of
motion,
in
this
case,
the
defendant
to
pay
moneys
to
the
plaintiff.
This
is
done
by
a
direct
action
and
after
a
trial
on
the
merits
is
had.
The
motion
is
dismissed
with
costs.
Motion
dismissed.
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