Date: 20010524
Docket: 2001-410-GST-I
BETWEEN:
MORLEY & LORRAINE PICKERING,
Appellants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Hamlyn, J.T.C.C.
[1] This is an appeal from an assessment under Part IX of the Excise Tax Act (the "Act") in respect of Goods and Services Tax ("GST") assessment number 0018001871237006[1], filed on January 31, 2001.
[2] The Appellants filed an application for the amount of $6,137.03 which was received by the Minister of National Revenue (the "Minister") on June 26, 2000. The application was with respect to a new housing rebate of the GST.
[3] By Notice of GST assessment numbered 0018001871237006 and dated July 20, 2000, the Minister notified the Appellants that their application had been disallowed.
FACTS
[4] The Appellants engaged in the construction of a residential complex, that was a single unit residential complex for use as their primary place of residence, located at 264 Old Orchard Road, Carrying Place, Ontario (the "complex").
[5] Construction of the complex was substantially completed on or around September 3, 1997. The Appellants did submit however that as of September 3, 1997 they had not started a proposed basement apartment and the landscaping was not complete.
[6] The Appellants occupied the complex as their primary place of residence on or around September 30, 1997.
[7] The Appellants were the first individuals to occupy the complex after the construction was begun.
[8] The Appellants filed an application and the Minister received the said application on June 26, 2000.
[9] The application was filed on or after April 23, 1996.
ANALYSIS
[10] Subsection 256(3) of the Act requires an application for an owner-built residential complex to be filed within two years after the earlier of the day the complex is first occupied after its construction has begun or the day ownership is transferred to another person without the complex having been occupied and the day construction of the complex is substantially completed.
[11] The wording of this provision is clear. If an application is not filed within two years after the earliest of the date the house is first occupied, the date the ownership is transferred and the date the construction is substantially complete, then the rebate cannot be granted.
[12] In this case, I conclude the house was substantially completed at the time of occupancy notwithstanding landscaping was not complete and the basement was not finished in terms of creating an apartment. Indeed, at the date of hearing, the proposed basement apartment still has not been addressed.
[13] The Appellants failed to file their application within the two-year period.
[14] The Appellants received misinformation about the filing of an application for a new housing GST rebate. The information came from their builder after the work was completed. It is indeed an unfortunate set of facts because if the Appellants had filed on time they probably would be entitled to the rebate. The words of Judge Beaubier in Meechan (J.) v. Canada, [1999] G.S.T.C. 117 is apt because of its similarity:
This is a case that deserves sympathy ... Nonetheless, subsec. 256(3) is clear and direct.
[15] This Court does not have remedial legislative or inherent powers to assist the Appellants.
DECISION
[16] The appeal is dismissed.
Signed at Ottawa, Canada, this 24th day of May 2001.
"D. Hamlyn"
J.T.C.C.