[OFFICIAL ENGLISH TRANSLATION]
2000-4747(IT)I
BETWEEN:
CHANTAL KENDALL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 6, 2001, at Montréal, Quebec, by
the Honourable Judge Alain Tardif
Appearances
Counsel for the Appellant: Jean-Louis Darveau
Counsel for the Respondent: Claude Lamoureux
JUDGMENT
The appeal from the child tax benefit determination for the 1997 base taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 19th day of March 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 29th day of May 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020319
Docket: 2000-4747(IT)I
BETWEEN:
CHANTAL KENDALL,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal for the 1997 taxation year.
[2] In issuing and maintaining the notice of determination dated July 10, 1998, and the child tax benefit notice dated July 20, 1998, concerning the 1997 taxation year, the Minister of National Revenue (the "Minister") assumed, inter alia, the following facts:
(a) in filing her tax return for the taxation year at issue, the appellant indicated her marital status as "divorced";
(b) the appellant is the mother of two children, Patrice and Vicky;
(c) the Minister established the appellant's net income at $58,303, as reported;
(d) when the net family income of $58,303 was taken into account for the 1997 taxation year, the appellant was ineligible for the GST credit;
(e) in calculating the child tax benefits for the 1997 base taxation year, the effect of taking the net family income of $58,303 into account was that the amount of benefit payable for the period from July 1998 to June 1999 was $420.90.
[3] The appellant admitted all of the facts with the exception of paragraph (d).
[4] Subsection 152(4) of the Income Tax Act (the "Act") states the following on this point:
(4) Assessment and reassessment - Subject to subsection (5), the Minister may at any time assess tax for a taxation year, interest or penalties, if any, payable under this Part by a taxpayer or notify in writing any person by whom a return of income for a taxation year has been filed that no tax is payable for the year, and may
(a) at any time, if the taxpayer or person filing the return
(i) has made any misrepresentation that is attributable to neglect, carelessness or wilful default or has committed any fraud in filing the return or in supplying any information under this Act, or
(ii) has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year,
(b) before the day that is 3 years after the expiration of the normal reassessment period for the taxpayer in respect of the year, if
(i) an assessment or reassessment of the tax of the taxpayer was required pursuant to subsection (6) or would have been required if the taxpayer had claimed an amount by filing the prescribed form referred to in that subsection on or before the day referred to therein,
(ii) there is reason, as a consequence of the assessment or reassessment of another taxpayer's tax pursuant to this paragraph or subsection (6), to assess or reassess the taxpayer's tax for any relevant taxation year,
(iii) there is reason, as a consequence of a transaction involving the taxpayer and a non-resident person with whom the taxpayer was not dealing at arm's length, to assess or reassess the taxpayer's tax for any relevant taxation year, or
(iv) there is reason, as a consequence of an additional payment or reimbursement of any income or profits tax to or by the government of a country other than Canada, to assess or reassess the taxpayer's tax for any relevant taxation year, and
(c) within the normal reassessment period for the taxpayer in respect of the year, in any other case, reassess or make additional assessments, or assess tax, interest or penalties under this Part, as the circumstances require, except that a reassessment, an additional assessment or an assessment may be made under paragraph (b) after the normal reassessment period for the taxpayer in respect of the year only to the extent that it may reasonably be regarded as relating to
(d) the assessment or reassessment referred to in subparagraph (b)(i) or (ii),
(e) the transaction referred to in subparagraph (b)(iii), or
(f) the additional payment or reimbursement referred to in subparagraph (b)(iv).
[5] Through her counsel, the appellant submitted arguments that were essentially based on equitable principles. The appellant's case is deserving of sympathy; unfortunately, the Tax Court of Canada has no jurisdiction to accept such equitable arguments. The sole authority it has is to determine whether the reassessments comply with the relevant provisions of the Act. Moreover, this issue has been dealt with in a number of decisions. Some passages from a few of those decisions should be reproduced:
Dubé v. Canada, [1996] T.C.J. No. 1545 (Q.L.), Lamarre T.C.J.:
6 The appellant invoked the administrative error in an attempt to have the assessment vacated. He contended that the Minister had all the evidence in hand at the time he issued the first assessment in which the child care expense deduction was allowed. It was in the reassessment dated December 4, 1995, that the Minister subsequently denied the appellant the deduction.
7. I will respond to this contention by saying that there was no administrative error since the Minister acted within the time limits required by subsection 152(4) of the Act in issuing a reassessment. Furthermore, the case law is clear that the Minister is not bound by his previous decisions if they do not comply with the letter of the Act.
Chilton v. Canada, [1994] T.C.J. No. 354 (Q.L.), Beaubier T.C.J.:
4. The Appellant realized his liability, filed his 1990 Income Tax Return properly and paid his taxes. Revenue Canada reassessed him incorrectly, refunded him money and when he phoned them, told him the law had changed. The Appellant spent the refund and has since lost his job. He is not as well off as he was in 1990 and 1991 and asks for the mercy of the Court in respect of these circumstances which arise from Revenue Canada's error.
5 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.
Video Adventures Ltd. v. Canada, [1994] T.C.J. No. 751 (Q.L.), Kempo T.C.J.:
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. No errors concerning the application of the law have been established during this hearing.
[6] The Minister was justified in adjusting the appellant's calculations for the child tax benefit; accordingly, he could issue a reassessment.
[7] The two questions at issue consisted in determining, first, whether the Minister had correctly established the appellant's Goods and Services Tax credit as nil for the 1997 taxation year and, second, whether the child tax benefit had been correctly established for the 1997 taxation year.
[8] In both cases, the Minister performed the calculations correctly and in accordance with the provisions of the Act. Consequently, despite the significant inconveniences suffered by the appellant, I must dismiss her appeal.
Signed at Ottawa, Canada, this 19th day of March 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 29th day of May 2003.
Sophie Debbané, Revisor