BETWEEN:
and
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Appeal heard on February 9 and September 21, 2005 at Toronto, Ontario
Before: The Honourable Justice Gerald J. Rip
Appearances:
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JUDGMENT
The appeal from the assessment made under Part IX of the Excise Tax Act dated September 22, 2003 and bearing number 0887-00184219-1 is allowed, without costs, on the basis that Mrs. Wylie paid Goods and Services Tax of $2,244.76.
The style of cause is amended by striking Stephen J. Wylie as an appellant.
Signed at Ottawa, Canada this 26th day of September 2005.
BETWEEN:
NANCY J. WYLIE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] In this appeal by Nancy J. Wylie from an assessment made under Part IX of the Excise Tax Act ("Act"), the issue is whether or not Mrs. Wylie is entitled to a "new housing rebate" ("rebate") of $5,770.38 pursuant to paragraph 256(2)(c) of the Act.
[2] Mr. Stephen Wylie, the appellant's husband, testified on her behalf.
[3] On May 23, 2003 Mrs. Wylie took possession of a home she purchased from Ray Bibeau and Laverne Curtis operating as Bayshore Builders Brechin ("Bayshore Builders"). Bayshore Builders was registered for Goods and Services Tax ("GST") purposes effective September 19, 2003.
[4] Mr. Wylie recalled that the price for the house was advertised as including GST. He produced a copy of an advertisement for the house; the asking price is $294,900. He also stated that the vendor told him that GST was included in the notice.
[5] The appellant filed a claim for the rebate of $5,770.38 on May 28, 2003. The respondent states that the rebate claim included an amount of not less than $4,786.58 which had never been paid to the Minister by Bayshore Builders or Mrs. Wylie. The Minister reduced the rebate to $983.80.
[6] Mr. Wylie declared that he and Mrs. Wylie paid Bayshore Builders a total of $203,500 for their home and complained that they are entitled to a rebate in the amount claimed. He stated that the fact Bayshore Builders failed to pay GST is not his fault but the fault of the Minister. As far as he is concerned, the house price was advertised to include GST and therefore what he paid included GST.
[7] Mr. Wylie produced a copy of his solicitor's trust ledger statement on the purchase of the house. The ledger statement includes a payment to "Switzer Tim - Br Mart" of $38,564. However, the solicitor provided no receipts and no other details.
[8] At trial on February 9, 2005, it was apparent that Mr. and Mrs. Wylie were unable to produce proper evidence to substantiate their entitlement to their full rebate claim. I did not give judgment at the time and requested Mrs. Wylie to contact her solicitor, Mr. Gregory Mulligan of the firm Bourne, Jenkins & Mulligan in Orillia, Ontario for a statement verifying that the payment to Switzer's Tim-Br Mart was for the purchase of (GST) taxable supplies. The trial reconvened on September 21, 2005.
[9] Mrs. Wylie wrote to this effect to Mr. Mulligan stating that she required the information "for the purpose of receiving a GST rebate on the purchase of a new home". Mr. Mulligan faxed to her another copy "of our trust ledger statement showing the amount paid to Switzer on your behalf for you to forward to the Tax Court of Canada as required".
[10]There is no reference to the purchase of taxable supplies in the solicitor's trust ledger account, only an amount paid to "Switzer Tim - Br Mart". However, after discussion Mr. Penny, respondent's counsel, referred me to monthly invoices sent by Switzer to Bayshore Builders, attached to Mr. Mulligan's affidavit, which describes the amount of GST for the month, $987.03, $973.55 and $284.18 for the months of August, September and November, respectively, a total of $2,244.76.[1]
[11]I believe that although Mr. Mulligan was not cross-examined on his affidavit, and relying on Mr. Wylie's testimony, there is evidence that at least $2,244.76 of the money given by Mrs. Wylie to Baysore Builders was GST. On this basis the appeal is allowed.
[12]The style of cause shall be amended by striking Stephen J. Wylie as an appellant.
Signed at Ottawa, Canada this 26th day of September 2005.
"Gerald J. Rip"
Rip J.
COURT FILE NO.: 2004-2781(GST)I
STYLE OF CAUSE: NANCY J. WYLIE AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATES OF HEARING: February 9 and September 21, 2005
REASONS FOR JUDGEMENT BY: The Honourable Justice Gerald J. Rip
DATE OF JUDGMENT: September 26, 2005
APPEARANCES:
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Agent for the Appellant: |
Stephen J. Wylie
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Counsel for the Respondent: |
Jonathon Penney |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario