Date: 20020116
Docket: A-26-99
Neutral citation: 2002 FCA 21
CORAM: STONE J.A.
BETWEEN:
MARY CAMPEAU DEVELOPMENTS LTD.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on January 16, 2002.
Judgment delivered from the Bench at Ottawa, Ontario, on January 16, 2002.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20020116
Docket: A-26-99
Neutral citation: 2002 FCA 21
CORAM: STONE J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
MARY CAMPEAU DEVELOPMENTS LTD.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on January 16, 2002.)
[1] This is an application for judicial review brought by Mary Campeau Developments Ltd. with respect to a decision of the Tax Court dated December 11, 1998 as amended on March 9, 1999. We are all of the opinion that this application for judicial review must be dismissed.
[2] Counsel for the applicant submitted that the applicant was entitled by subsection 230(1) of the Excise Tax Act, S.C. 1990, c. 45, to claim a refund of $56,000 that had been paid on behalf of the applicant in 1991 as the GST owing with respect to a real estate transaction. The applicant maintains that the money was paid in error, although the applicant did not ask the Minister for a refund until 1997. Nonetheless, counsel argued that, unlike section 261 of the Act, no statutory limitation period applies to claims for refunds made under section 230.
[3] In our opinion, section 230 is inapplicable to the facts of this case, since the solicitor for the applicant sent the cheque to Revenue Canada for the amount of GST that he thought was owing at the same time as the applicant filed its GST return for the third quarter of 1991. When section 230 is read with section 228, it is clear that section 230 only applies when a GST payment is made prior to the filing of the return for the period within which a payment is made.
Moreover, subsection 230(1) obliges the Minister to refund any excess paid in a filing period with all due dispatch after the filing of a return. It is therefore implicit in the statutory scheme that a registrant must claim a refund under section 230 when the registrant files the return at the end of the period as required by the Act.
[4] The applicant in this case did not claim a refund when its return was filed for the quarter in which the sum of $56,000.00 was paid. A request that the payment be credited to the applicant and used to reduce its other GST indebtedness was not made until 1997. Hence, the applicant cannot rely on section 230 for a refund of this amount.
[5] Nor is the applicant entitled to rely on section 261 for a rebate of tax since no request was made within the four-year statutory limitation period which started to run in 1991 when the allegedly mistaken payment was made.
[6] For these reasons the application for judicial review will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET:
A-26-99
STYLE OF CAUSE:
Mary Campeau Developments Ltd. v.
Her Majesty the Queen
PLACE OF HEARING:
Ottawa, Ontario
DATE OF HEARING:
January 16, 2002
REASONS FOR JUDGMENT OF THE COURT:
Stone, J.A.
Evans, J.A.
Malone, J.A.
RENDERED FROM THE BENCH BY:
Evans, J.A.
APPEARANCES:
Ms. Susan Tataryn
FOR THE APPLICANT
Ms. Anne-Marie Ldvesque & Mr. Michael Ezri
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Rasmussen Starr Ruddy
FOR THE APPELLANTS
Ottawa, Ontario
Mr. Morris Rosenberg
FOR THE RESPONDENT
Deputy Attorney General of Canada