1999-4766(GST)I
BETWEEN:
ERICA DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on May 5, 2000 at Toronto, Ontario, by
the Honourable Judge D.W. Beaubier
Appearances
For the Appellant: The Appellant herself
Counsel for the Respondent: Jocelyn Espejo Clarke
JUDGMENT
The appeal from the assessment made under the Excise Tax Act, notice of which is dated February 1, 1999 and bears number 08EP-115947590, is allowed and referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 9th day of May 2000.
|
"D.W. Beaubier" |
J.T.C.C.
Date: 20000509
Docket: 1999-4766(GST)I
BETWEEN:
GLENDA DAVIS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Beaubier, J.T.C.C.
[1] This appeal pursuant to the Informal Procedure was heard at Toronto, Ontario on May 5, 2000. The Appellant testified and the Respondent's auditor, Scott Lindhorst, C.M.A., testified.
[2] The Appellant testified that she married her husband in December, 1991. When cross-examined on the question that she had not filed with Revenue Canada as a married person, she did not deal with this subject again. The Appellant's husband lived in Toronto and she lived in Guelph. They decided to open a store "Fasco Variety" at 39 MacDonnell Street in Guelph. It sold frozen, cooled and other products and some Caribbean food such as plantains, green bananas and salted meats. They opened the store in August, 1992 in a premises of about 1,000 square feet. The Appellant borrowed and invested capital in the store consisting of the following:
Cash $20,000
Credit Union loan 30,000
Royal Bank loan 10,000
$60,000
The business name was a sole proprietorship in the Appellant's name and she registered for G.S.T. in her sole name. She states that she did the bookkeeping and filed the reports. However, she believes that her husband may have forged her name to some of the cheques for input tax credits which she received. The Appellant stated that the $20,000 cash was money she had acquired to provide her parents in the Caribbean with a home.
[3] In September, 1992 the Appellant began a course of divinity studies in Hamilton. At about the end of August, 1993 the Appellant's husband decided that he would do direct sales of small "dreambooks" in Toronto and the store was rented to purchase to Gosticks. The Appellant and her husband continued to commute back and forth to Guelph from Hamilton and Toronto respectively. The Appellant continued to file forms for G.S.T. input tax credits. Her husband apparently printed and sold the dreambooks in Toronto in 1995 under the "Fasco" name and the Appellant claimed input tax credits for the appeal period from January 1, 1995 to March 31, 1997.
[4] By about May of 1994 the Gosticks and all of the contents of the store premises disappeared. The Appellant blames the Gosticks. However, she was not visiting the store; her husband apparently was from time to time, and some of the equipment which disappeared was in his name and he also disappeared by 1997.
[5] When her husband was selling dreambooks in Toronto the Appellant kept on doing the paperwork while living at times in Guelph and at times in Hamilton. She graduated from her divinity course and obtained a full time job in 1996. She was the person who filed the G.S.T. credit claims in question. At no time before trial did the Appellant refer to the alleged dreambook business. She admitted in Court that she did not file all of the documents required for validation of her G.S.T. input tax credits and that some of the larger purchases were in her husband's name.
[6] Revenue Canada began this audit by June of 1997 and wrote the Appellant for a meeting on July 31. 1997. She arranged a meeting for October and cancelled it. Revenue Canada wrote her thereafter but the Appellant testified that she treated the matter on the basis that they would meet at her convenience and she did not arrange another meeting. The audit was finalized on November 17, 1997.
[7] The Appellant did not lead any evidence to rebut the assumptions or the allegations of the Respondent or its witness, Mr. Lindhorst. The Respondent admitted an error for 1995 which entitles the Appellant to a credit in her favour of $96.91 for 1995. On this basis the over claimed tax credits assessed are reduced as follows:
Assessed $5,300.76
Credit for 1995 - 96.91
Overclaimed Tax Credits found
by the Court $5,203.85
[8] Accordingly, the Court finds that the Appellant overclaimed input tax credits for the period of $5,203.85 and that she did not have adequate documentation for them as required under subsection 169(4) of the Excise Tax Act. This matter is referred to the Minister for reconsideration and reassessment in accordance with these reasons.
Signed at Ottawa, Canada this 9th day of May 2000.
"D.W. Beaubier"
J.T.C.C.
COURT FILE NO.: 1999-4766(GST)I
STYLE OF CAUSE: Erica Davis and The Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 5, 2000
REASONS FOR JUDGMENT BY: The Honourable Judge D.W. Beaubier
DATE OF JUDGMENT: May 9, 2000
APPEARANCES:
For the Appellant: The Appellant herself
Counsel for the Respondent: Jocelyn Espejo Clarke
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada