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2005-1413(IT)I |
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BETWEEN: |
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RENEE COLLINS, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Appeal decided on written submissions of the parties by
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The Honourable Justice E.A. Bowie |
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Representatives:
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For the Appellant: |
The Appellant herself
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Counsel for the Respondent: |
Justine Malone |
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JUDGMENT
The appeal from the redeterminations made under the Income Tax Act for the 2002 base taxation year is dismissed.
Signed at Ottawa, Canada, this 15th day of March, 2006.
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"E.A Bowie" |
Bowie J.
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Citation: 2006TCC154 |
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Date: 20060315 |
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Docket: 2005-1413(IT)I |
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BETWEEN: |
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RENEE COLLINS, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
BowieJ.
[1] This is an appeal brought under the Court's informal procedure from redeterminations under the Income Tax Act (the Act) whereby the Minister of National Revenue seeks to recover from the appellant two amounts. The first is $409.50 that was paid to her as a goods and services tax (gst) credit. The second amount is $2,412.66 that was paid to her as a child tax benefit. The issue in the appeal is whether these amounts are overpayments that the appellant is obliged to pay back.
[2] The appellant is now a resident of the United States of America. To save her the expense of attending a hearing of her appeal in Canada the parties agreed that the appeal should be dealt with by way of a statement of agreed facts, together with written submissions from both parties. These have now been filed. I shall set out the agreed facts in full.
1. At all material times, the Appellant had one child, Nicole, born November 20, 1989 (the "Child") eligible for the Child Tax Benefit ("CTB") and the Goods and Services Tax Credit ("GSTC").
2. Prior to July 1, 2003 the Appellant resided with the Child in Edmonton, Alberta.
3. On July 1, 2003 the Appellant moved with the Child to Antelope, California and ceased to be a resident of Canada as of that date.
4. The Appellant notified the Canada Revenue Agency (the "CRA") on June 23, 2003 via telephone that she was moving permanently to the United States, and gave the CRA her new address effective July, 2003.
5. The Appellant did not receive notice from the CRA that she would no longer be eligible to receive CTB and GSTC at the time she moved to the United States.
6. The CTB and GSTC payments continued to be deposited directly into a bank account the Appellant maintained in Canada subsequent to her move in the United States, until January 2004, and thereafter were sent to the Appellant's address in the United States after the said bank account was closed by the Appellant.
7. During the months of July 2003 to June 2004 as they apply to the 2002 'base taxation year', the appellant received CTB of $2,632.00.
8. During the months of July and October 2003 and January and April 2004 as they pertain to the 2002 taxation year, the Appellant received GSTC of $546.00.
9. The Appellant filed her 2003 T-1 return prior to April 30, 2004 and indicated that she ceased to be a resident of Canada on July 1, 2003.
10. In May 2004, the Minister wrote a letter to he Appellant requesting certain information including where she was currently residing, the name and birth dates of children living with her and her current marital status.
11. By Notice of Re-determination dated July 23, 2004, the Minister informed the Appellant that her GSTC for the 2002 taxation year had been overpaid by the amount of $409.50.
12. By Notice of Re-determination dated August 20, 2004, the Minister informed the Appellant that, with respect to the 2002 'base taxation year', her CTB had been overpaid by the amount of $2,412.66.
13. The Appellant's 2003 T-1 return was assessed on August 23, 2004.
14. The Appellant served on the Minister a Notice of Objection received by the Minister on November 9, 2004 in regard to the Notices referred to in paragraphs 11 and 12 herein.
15. By Notice of Confirmation dated February 8, 2005, the Minister advised the Appellant that the Notice of Re-determination as referred to in paragraphs 11 and 12 herein had been confirmed.
[3] Two things are clear from these agreed facts. The first is that the appellant ceased to be a resident of Canada before the beginning of the periods for which the amounts were paid to her. That being so, she was certainly not entitled to receive either of the payments. The provisions of the Act that are relevant are paragraph 122.5(2)(c) in respect of the gst credit, and paragraph 122.6(c) in respect of the child tax benefit. Both these paragraphs make it quite clear that only a person who is a resident of Canada at the relevant time is eligible to receive the payments in question, subject only to a minor exception that does not apply in this case. Ms. Collins was not a Canadian resident at the relevant time, so she was not eligible to receive the payments.
[4] It is also clear that it was through no fault of Ms. Collins that the Minister continued to make payments to her after her entitlement to them had ended. She notified the Revenue Agency that she was moving from Canada to the United States in a timely way. The overpayments were made entirely as a result of administrative error on the part of the Minister of National Revenue. Ms. Collins says in her written submission that this is sufficient to entitle her to keep the overpayments. It would be unfair, she says, to make her repay the amounts in question.
[5] Unfortunately for the appellant, the law is clear that recipients of such overpayments must repay them, whether the overpayment resulted from their fault, or from the fault of the government agency that made the payment. There are many decisions of this Court that have applied this principle; one of the most recent is the decision of Little J. in Pearce v. The Queen, a copy of which was included with the written submission of the respondent.
[6] I have no alternative but to dismiss the appeal.
Signed at Ottawa, Canada, this 15th day of March , 2006.
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"E.A. Bowie" |
Bowie J.
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CITATION: |
2006TCC154 |
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COURT FILE NOS.: |
2005-1413(IT)I |
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STYLE OF CAUSE: |
Renee Collins and Her Majesty the Queen |
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PLACE OF HEARING: |
n/a |
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DATE OF HEARING: |
n/a |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice E.A. Bowie |
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DATE OF JUDGMENT: |
March 15, 2006 |
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REPRESENTATIVES: |
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For the Appellant: |
The Appellant herself |
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Counsel for the Respondent: |
Justine Malone |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
n/a |
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Firm: |
n/a |
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For the Respondent: |
John H. Sims, Q.C. Deputy Attorney General of Canada Ottawa, Canada |