Date: 20010516
Dockets: 2000-3425-GST-I; 2000-3426-GST-I; 2000-3437-GST-I
BETWEEN:
PACIFIC VENDING LTD., FEDER INTERNATIONAL DISTRIBUTING CORP., PACIFIC COAST VIDEO ENTERTAINMENT INC.,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
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Agents for the Appellants: Samuel Feder and Mark Meredith
Counsel for the Respondent: Jasmine Sidhu
____________________________________________________________
Reasons for Judgment
(delivered orally from the Bench on February 12, 2001 at Vancouver, British Columbia)
Campbell, J.
[1] These three matters were heard together as the issue was common to all three. Counsel agreed that there was no dispute respecting the facts and as such no evidence was called.
[2] The issue is simply whether interest is payable to the Appellants on a remission of taxes pursuant to a remission order entitled "Coin-Operated Devices Remission Order" made pursuant to subsection 23(2) of the Financial Administration Act. All amounts were paid prior to April 1996.
[3] Briefly, by way of background each of these three companies were GST registrants. They own and operate amusement arcades and machines. On April 14, 1998, Pacific Coast Video Entertainment filed a GST rebate application for tax paid in error. On April 14, 1998, Pacific Vending Ltd. also filed a GST rebate application for tax paid in error. On March 4, 1999, the Governor General in Council issued the "Coin-Operated Devices Remission Order". On October 7, 1999, the third Appellant, Feder International Distributing, then filed an application for remission of taxes pursuant to this Order. In March 2000, each of these companies were paid a refund being a remission of GST pursuant to this Remission Order. The Order did not provide for the payment of interest to each of the Appellants (reference Tab 9 of the Respondent's Book of Authorities).
[4] The Appellants here do not contest the amount of the rebate but argue that the rebates should be subject to interest being payable by the Minister.
[5] I agree with Judge Lamarre Proulx's comments in Pachanos v. M.N.R., 90 DTC 1668, where she stated that a remission order relates to procedure for collecting taxes that are owing and unpaid and not to the assessment of tax.
[6] Remission Orders are dealt with in section 23 of the Financial Administration Act. Section 12 of the Tax Court of Canada Act lists the various Acts over which this Court has exclusive original jurisdiction to hear and determine appeals. The Financial Administration Act is not listed in this section. However, the Coin Operated Devices Remission Order specifically refers to subsection 23(2) of the Financial Administration Act in its opening paragraph.
[7] I have reviewed the relevant provisions of the Excise Tax Act and in particular section 296 but unfortunately I must conclude there is no avenue under the Act that this Court can take to vary a remission order. The order contains no right of appeal or interest payable provisions. A remission order is a discretionary animal of the Minister and I must agree with the Respondent that this Court has no jurisdiction under the Financial Administration Act to grant the Appellants what they are asking. The amounts of the rebates here are substantial and it is unjust that the Minister has had the use of these monies for a period of time without the payment of interest. However, I do not have the jurisdiction to give the Appellants the relief they seek. There is no statutory authority which would authorize me to direct the Minister to pay interest to the Appellants on the refunds. I cite Judge Rip of this Court in McMillen Holdings Limited v. M.N.R., 87 D.T.C. 585 at page 591, as follows:
...The Minister may notify the taxpayer of any interest due to him in the notice of assessment. If, however, the Minister does not make such refund at the time of mailing the notice of assessment the taxpayer has four years from the end of the taxation year to apply for such refund. But the determination, calculation or amount of refund and the interest resulting from any overpayment of tax do not constitute the assessment of tax, interest or penalty although the question of interest is determined in the assessment process and may be indicated on the notice of assessment. However, the notice of assessment is not the assessment. In my view the appellant at bar is not appealing from any assessment of income tax or interest but is asking the Court to make a direction to order the Minister of National Revenue to make a payment of interest.
[8] Section 309 of the Excise Tax Act sets out this Court's jurisdiction on hearing appeals and the Court may dismiss or allow and vacate the assessment or refer the assessment back to the Minister for reconsideration and reassessment. An assessment by its nature is a determination of liability of a taxpayer. As Judge Rip stated in McMillen:
...An amount of money owed to the taxpayer by the Crown on account of interest is not an amount which is subject to an assessment or an assessed amount of money.
[9] The only issue here is one of interest on a refund under a Remission Order made pursuant to the Financial Administration Act. Regretfully, I must advise the Appellants that this Court lacks the jurisdiction to provide the relief sought.
[10] The appeals are therefore dismissed.
Signed at Ottawa, Canada, this 16th day of May 2001.
"Diane Campbell"
J.T.C.C.