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Citation: 2005TCC577 |
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Date: 20050906 |
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Docket: 2005-744(IT)I |
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BETWEEN: |
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ROGER T. KISHI, |
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Appellant, |
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And |
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HER MAJESTY THE QUEEN, |
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Respondent. |
For the Appellant: The Appellant himself
Counsel for the Respondent: John Gibb-Carsley
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REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Nanaimo, British Columbia, on August 5, 2005)
McArthur J.
[1] In the assessing the Appellant's 2003 taxation year, the Minister of National Revenue reduced the Appellant's claimed Registered Retirement Savings Plan contribution from $4,585 to $251, after complex mechanics with reference to numerous sections and regulations of the Income Tax Act. The Appellant's objection and appeal are not with the accuracy of the Minister's calculations or interpretation of the Act. His position is that he was not advised by Canada Revenue Agency of the tax implications, even though CRA was aware of his purchase of past service. He adds that he was not aware of his RRSP contribution room until his 2003 return was assessed.
[2] The Appellant had been employed by the Providence Health Care Society (PHCS) and, I believe, in 2003 was on secondment with a related union. In that year, he made registered pension plan contributions of $2,692 with respect to a pension plan established for employees of PHCS, and this amount was included on the Appellant's T4 information slips issued by PHCS.
[3] The Appellant's unused RRSP deduction room at the end of 2002 was $395, and his earned income for RRSP purposes was $52,886. Also, his pension adjustment for 2002 was $5,329. In September of 2003, he bought back past service of a registered pension plan, at a total cost of $5,601.41, to provide for his retirement. The cost of buying back this past service was shared between the Appellant and his employer. The Appellant financed his share by transferring funds from his unmatured RRSP.
[4] The Appellant did not receive a taxable benefit in 2003 when he directly transferred funds from his RRSP to buy back the past services. The past service of the RPP which the Appellant bought back covered the period May 25, 1999 to December 21, 2001. His past service pension plan adjustment for 2003 was $4,334 as a result of the buy back of RPP. The Appellant's RRSP deduction limit for 2003 was $251. The Appellant made RRSP contributions totalling $5,270 for the period March 4, 2003 to March 1, 2004, and the maximum he was entitled to contribute for the taxation year was $251.
[5] While the Appellant's main position is one of fairness, he did raise a question with respect to a statement made by a Minister's representative during a telephone conversation on May 6, 2004. The Appellant presented his own appeal in a straightforward and honest manner. He set out a chronology of events outlined in Exhibit A-1.
[6] In April 2003, he received from CRA a 2002 notice of assessment indicating his RRSP contribution limit for 2003 was $4,585 which he claimed in that year. On April 22, 2004, the Minister assessed the Appellant for 2003 by reducing his RRSP contribution amount to $251. The Minister determined that the Appellant is not entitled to deduct the amount he directly transferred from his unmatured RRSP account to buy back past services of his RPP and further, he is not entitled to deduct the net past service pension adjustment in the amount of $4,334 because it represents an increase in the Appellant's pension benefits as a result of buying back past service.
[7] The Appellant does not dispute these conclusions. He states that it is not fair since he was advised in April 2003 that he had the amount of $4,585 as an RRSP contribution available for 2003, and was not made aware of the tax implications of purchasing RPP service. Rather than receiving an expected $500 refund in April 2004, the Appellant was advised that he owed $1,300 in additional tax.
[8] I found the Appellant to be an above the average taxpayer. He appeared to understand the highly complex legislation that led to the Minister's unfavourable conclusion. He acknowledges that at law, the Minister's determination is correct. He requests an equitable decision based on fairness to overturn the Minister's decision and waive interest and penalties.
[9] From the pleadings and documentation entered, there is no indication that penalties are claimed. I do not address penalties, and I have no jurisdiction to waive interest unless it was miscalculated, and again there is no evidence of this. As explained to the Appellant at the conclusion of the hearing, it cannot be said that the judges of this Court cannot be fair. Indeed, I have no doubt that the Tax Court Judges apply extraordinary fairness within the scope of their jurisdiction when rendering decisions, but they cannot change the legislation.
[10] In any event, hearing the able submissions of counsel for the Respondent, I am not convinced that the system treated the Appellant unfairly. The following statement of Chief Justice Richard of the Federal Court of Appeal in Chaya v. Canada, 2004 FCJ 1630, applies equally to the present situation:
The applicant says that the law is unfair and he asked the Court to make an exception for him, however, the Court does not have that power. The Court must take the statute as it finds it. It is not open to the Court to make exceptions to statutory provisions on the grounds of fairness or equity. If the applicant considers the law unfair his remedy is with Parliament not the Court.
[11] The Appellant's secondary argument is that a CRA officer advised him, during a telephone call on May 6, 2004, that an adjustment would correct the Appellant's return. The Appellant did not pursue this aggressively and, as counsel for the Respondent advised, estoppel cannot override the law (Bowman J. in Moulten v. the Queen, 2002 TCJ 80). As with Tax Court Judges, officers of CRA must take the Income Tax Act as they find it.
[12] The appeal is dismissed.
Signed at Ottawa, Canada, this 6th day of September, 2005.
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"C.H. McArthur" |
McArthur J.
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CITATION: |
2005TCC577 |
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COURT FILE NO.: |
2005-744(IT)I |
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STYLE OF CAUSE: |
Roger T. Kishi and Her Majesty the Queen |
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PLACE OF HEARING: |
Nanaimo, British Columbia |
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DATE OF HEARING: |
August 4, 2005 |
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REASONS FOR JUDGMENT BY: |
The Honourable Justice C.H. McArthur |
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DATE OF JUDGMENT: |
August 11, 2005 |
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APPEARANCES: |
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For the Appellant |
The Appellant himself |
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Counsel for the Respondent: |
John Gibb-Carsley |
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COUNSEL OF RECORD: |
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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 |