97-1946(GST)I
BETWEEN:
DAVID E. JORSTEAD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 20, 1998, at Whitehorse, North West Territories, by
the Honourable Judge C.H. McArthur
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: John C. O'Callaghan
JUDGMENT
The appeal from the assessment made under the Excise Tax Act, notice of which is dated October 11, 1996, and bears number 10110014 is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 11th day of August 1998.
|
" C.H. McArthur " |
J.T.C.C.
Date: 19980811
Docket: 97-1946(GST)I
BETWEEN:
DAVID E. JORSTEAD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
McArthur, J.T.C.C.
[1] This is an appeal under the Goods and Services Tax provisions of the Excise Tax Act. The Minister of National Revenue (the "Minister") concluded that the Appellant is entitled to no more than $1,940.61 of the $6,717.49 claimed as input tax credits with respect to the construction of a $125,000 addition to his mobile home.
[2] The Appellant is a chartered accountant who drove 20 hours, much of it over gravel roads from Inuvik, North West Territories to Whitehorse, Yukon, for the hearing of this appeal in July 1998. He advised the Court that he now agreed that Inuvik is not a remote work site pursuant to subsection 191(7) of the Income Tax Act.
[3] The Appellant claims additional input tax credits with respect to the construction of the addition to his mobile home on the basis that in his original application for input tax credits he indicated that he had contracted with Inuvik Construction Ltd. to build the addition. Subsequently, he realized that it would have been more advantageous to him to have indicated that he personally was the contractor, at least in part, and asks the Court to make such an order.
[4] The Respondent's Counsel submits that such an order would be a declaratory one and not within this Court's jurisdiction. The mathematical calculations proposed by the Appellant are complex which I do not pretend to understand with precision and I believe I can say the same for both parties to this action. Fortunately, the calculations are not in question.
Issue
[5] What it boils down to is that the Appellant requests the Court to make a finding that the Appellant was the contractor together with the Corporation.
[6] Mr. Petrin, who is the principal of the Corporation Inuvik Construction Ltd., was not present to give evidence because of illness. The Appellant and Mr. Petrin are close personal friends. The original documents including invoices indicate that the Corporation was the contractor.
[7] The last paragraph of the Appellant's Notice of Appeal reads as follows:
"The Notice of Decision does not adequately deal with the question of who is the contractor Inuvik Construction Ltd. or David Jorstead! It also contains one misstatement "that Inuvik Construction Ltd. invoiced me for all costs including labour", the truth is that I invoiced myself and that Mr. Petrin even declined my offer to review the invoice. I would like to bring Mr. Petrin and myself to a court in Edmonton and try to convince the judge that "we both were the contractor" and consequently the benefit of any doubt should be allowed the taxpayer. Mr. Petrin's health has deteriorated to the point where he uses oxygen and spends quite a bit of his time in Edmonton now."
Legislation
Subsection 309(1) of the Excise Tax Act mirrors subsection 171(1) of the Income Tax Act and reads as follows:
"309.(1) The Tax Court may dispose of an appeal from an assessment by
(a) dismissing it; or
(b) allowing it and
(i) vacating the assessment, or
(ii) referring the assessment back to the Minister for reconsideration and reassessment."
Analysis
[8] Dealing firstly with the issue of jurisdiction, the Respondent's Counsel referred to the decision of the late Sobier, J. of this Court, Alan Brooks v. Her Majesty The Queen, [1995] 1 C.T.C. 2880. In the Notice of Appeal, Alan Brooks claimed relief from the failure of his employer to remit source deductions. Judge Sobier held that the Court did not have jurisdiction. At page 2881, he stated that this Court is a statutory court and limited to the jurisdiction conferred on it by various statutes including the Income Tax Act, the Goods and Services Tax section of the Excise Tax Act and the Tax Court of Canada Act.
[9] Subsection 310(1) (GST) reads:
"310.(1) Where the Minister and another person agree in writing that a question arising under this Part, in respect of any assessment or proposed assessment, should be determined by the Tax Court, that question shall be determined by that Court."
[10] Then subsection 309(1) sets out how this Court may dispose of an appeal which includes dismissing it or allowing it by vacating or varying the assessment or referring the assessment back to the Minister. This Court is confined to what is expressly conferred on it by Parliament and what is necessarily implied from what is expressly conferred[1].
[11] Originally, the Appellant perceived it to be in his best interest to declare the Corporation as the contractor. He was assessed on that basis. He later realized his mistake and concluded that he could obtain additional input tax credits if he was considered the contractor for part of the invoices. He gave evidence to support his new position.
[12] This Court does not have the jurisdiction to grant the requested declaratory order.
[13] The appeal is dismissed.
Signed at Ottawa, Canada, this 11th day of August 1998.
|
" C.H. McArthur " |
J.T.C.C.
COURT FILE NO.: 97-1946(GST)I
STYLE OF CAUSE: Between David E. Jorstead and
Her Majesty the Queen
PLACE OF HEARING: Whitehorse, North West Territories
DATE OF HEARING: July 20, 1998
REASONS FOR JUDGMENT BY: the Honourable Judge C.H. McArthur
DATE OF JUDGMENT: August 11, 1998
APPEARANCES:
For the Appellant: The Appellant himself
Counsel for the Respondent: John C. O'Callaghan
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada