[OFFICIAL ENGLISH TRANSLATION]
2000-5118(IT)I
BETWEEN:
CLÉMENT GIRARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 23, 2002, at Chicoutimi, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Marie-Aimée Cantin
JUDGMENT
The appeal from the assessments made under the Income Tax Act for the 1998 and 1999 taxation years is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 3rd day of September 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 2nd day of December 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020903
Docket: 2000-5118(IT)I
BETWEEN:
CLÉMENT GIRARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal concerning the 1998 and 1999 taxation years.
[2] The point for determination is whether the Minister of National Revenue (the "Minister") was correct in allowing the appellant only the amounts of $1,507 and $835 in respect of charitable donations in computing his non-refundable tax credits for the 1998 and 1999 taxation years respectively.
[3] In making and confirming the assessments at issue, the Minister assumed the following facts:
[TRANSLATION]
(a) the appellant is a priest and, as a parish priest, is in charge of the parish of St-Jean-Vianney in the Saguenay;
(b) in that parish, there is a charity, the "St-Vincent-de-Paul Society", which is run by the Saint-Jean-Vianney parish council;
(c) as the parish priest, the appellant is the person authorized to sign the charitable receipts issued either by the St-Vincent-de-Paul Society or by the Saint-Jean-Vianney parish council;
(d) the appellant made gifts to members of his family, that is, Claudette Tremblay and her spouse, through the St-Vincent-de-Paul organization;
(e) the gifts were intended for a particular family, that of the appellant's cousin;
(f) the appellant deposited sums of money directly to his cousin's bank account after withdrawing them from his personal account and transferring them to the account of the St-Vincent-de-Paul Society;
(g) the appellant also used those funds to repay the debts of Ms. Tremblay and her spouse to the Quebec Ministère du Revenu, and the certified cheques payable to the Quebec Ministère du Revenu were signed by the appellant;
(h) an amount of $2,950 was carried over to 1998 in respect of charitable donations from 1997, and an amount of $7,497 was carried over to 1999 in respect of charitable donations from 1998;
(i) the Minister refused to include the carry-over of those charitable donations from previous years in computing the appellant's non-refundable tax credits because the amounts in issue were not substantiated;
(j) the charitable donations eligible for a tax credit for the 1998 taxation year are:
Priests of Sacré-Coeur $100.00
Priests of Sacré-Coeur $145.00
Priests of Sacré-Coeur $145.00
Priests of Sacré-Coeur $150.00
Priests of Sacré-Coeur $380.00
Grand Séminaire $100.00
C.E.C.R. de Chicoutimi $487.34
Total allowed $1,507.34
(k) the charitable donations eligible for a tax credit for the 1999 taxation year are:
Priests of Sacré-Coeur $275.00
C.E.C.R. de Chicoutimi $120.00
C.E.C.R. de Chicoutimi $440,00
Total allowed $835.00
(l) virtually all the charitable receipts that the Minister refused to allow as being eligible for a tax credit were signed by the appellant on behalf of the Saint-Jean-Vianney parish council;
(m) charitable receipts establishing the value of the appellant's housing at $4,500 for 1998 and $4,800 for 1999 were signed by an employee of the Saint-Jean-Vianney parish council;
(n) the appellant thus included in two places in his income tax returns the amounts of $4,500 and $4,800 since those amounts appear on the appellant's T4 slip for each of the years in issue, and he claimed them as expenses at line 229 of his tax returns in addition to claiming them as charitable donations in computing his non-refundable tax credits for the 1998 and 1999 taxation years.
[4] The appellant explained that he had provided financial assistance to certain members of his family. He testified that, before doing so, he had contacted the Jonquière Taxation Data Centre to verify whether as a result of such assistance he could issue receipts attesting to the gifts and, second, obtain the benefits from such gifts under the Income Tax Act (the "Act"). Since the person to whom the questions were submitted had answered in the affirmative, the appellant proceeded as he had proposed to do, that is, make the gifts and issue the corresponding receipts.
[5] In auditing his case, the person responsible for the analysis communicated with the church rectory and made utterly inappropriate, indeed highly cavalier comments and observations, even questioning the appellant's honesty.
[6] Shocked, and rightly so, at the attitude of the respondent's officials, the appellant wondered what to do to obtain reliable information consistent with the provisions of the Act and stated that he was entitled to respect and confidentiality with regard to his file.
[7] The appellant's submissions in support of his appeal dealt mainly with the utterly unacceptable manner in which he had been treated and the fact that he had obtained inadequate information from the respondent's officials.
[8] On this point, the appellant is entirely right in claiming that he is entitled to respect and confidentiality. It is equally unacceptable that citizens cannot obtain accurate information when they take the initiative of checking before conducting a transaction that may have consequences for their taxable income, particularly where they ask a simple question in an ordinary field of activity. It is just as unacceptable that the respondent's officials are irreverent or insolent in their analysis or investigation.
[9] The Act is so complex that many taxpayers must request information in order to find their bearings. The appellant was right to protest the quality of the information provided by the respondent's officials. However, does the fact that he obtained information inconsistent with the statutory provisions make his appeal valid?
[10] The courts have considered similar or comparable situations on a number of occasions. Certain passages from the case law submitted by the respondent should be cited. First, in Donovan v. M.N.R., [1988] T.C.J. No. 642 (Q.L.), Judge Labelle wrote as follows:
. . .
Unfortunately wrong advice is given but it is the law that prevails over the errors of employment Commission.
. . .
[11] In Video Adventures Ltd. v. Canada, [1994] T.C.J. No. 751 (Q.L.), Judge Kempo held as follows, at paragraph 10:
The Court has a lot of sympathy for Mr. Naugler who, it seems, was doing his personal best to comply with new and complex legislation. However, there is a long, well-established line of authority that mistakes made by fiscal officials do not drive the law, and that estoppel is subject to the general rule that it cannot override the law of the land.
[12] In Beal v. Canada, [1995] T.C.J. No. 1064 (Q.L.), Judge Rip wrote as follows, at paragraph 16:
That the appellant relied on the advice of the Minister of National Revenue's ("Minister") officials in claiming the tax credits does not assist him. The Minister cannot be bound by advice given by his or her officials when the conditions prescribed by the law were not met: ...
[13] Lastly, in Chilton v. Canada, [1994], T.C.J. No. 354 (Q.L.), Judge Beaubier stated at paragraph 5 of his judgment:
Unfortunately, this Court does not have the power to do as the Appellant asks. It has only the power to deal with the correctness of the assessment.
[14] In the instant case, the Court understands the appellant's disappointment and bitterness, particularly at the offensive and unseemly remarks made by the respondent's official in the course of efforts to check certain information in his file. There is no doubt in my mind that the appellant always acted in a fundamentally honest, open and even highly prudent manner by first ensuring that he could make the gifts and make use of the benefits.
[15] Although very sympathetic to his situation, I cannot accept the appellant's arguments since the Tax Court of Canada essentially has jurisdiction to determine whether the assessments that form the subject of this appeal were issued legally and correctly. If so, this Court has no latitude to vary or vacate the assessments in appeal.
[16] In this case, the evidence is that the assessments were issued in accordance with the Act. Consequently, I must dismiss the appeal.
Signed at Ottawa, Canada, this 3rd day of September 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 2nd day of December 2003.
Sophie Debbané, Revisor