WELLSLEY INVESTMENTS INC.
Decisions
v.
THE MINISTER OF NATIONAL REVENUE
Appeal No. AP-93-251
TABLE OF CONTENTS
Ottawa, Monday, December 2, 1996
Appeal No. AP-93-251
IN THE MATTER OF an appeal heard on September 4, 1996, under section 81.19 of the Excise Tax Act, R.S.C. 1985, c. E-15;
AND IN THE MATTER OF a decision of the Minister of National Revenue dated June 30, 1993, with respect to a notice of objection served under section 81.17 of the Excise Tax Act.
BETWEEN
WELLSLEY INVESTMENTS INC. Appellant
AND
THE MINISTER OF NATIONAL REVENUE Respondent
The appeal is dismissed.
Raynald Guay ______ Raynald Guay Member
Lyle M. Russell ______ Lyle M. Russell Member
Michel P. Granger ______ Michel P. Granger Secretary
The issue in this appeal is whether the appellant's application for a federal sales tax inventory rebate was filed with the Minister of National Revenue before 1992 as prescribed by subsection 120(8) of the Excise Tax Act and, if not, whether the appellant is entitled to the rebate notwithstanding the application being filed outside the application period.
HELD: The appeal is dismissed. In making its decision, the Tribunal acknowledges that its jurisdiction is strictly limited by statute and that it lacks the authority to render a decision based on equity or fairness. While the appellant's application for the rebate may have been filed late for good reasons, it was acknowledged not to have been filed before 1992. The Excise Tax Act is clear in requiring the application to be filed with the Minister of National Revenue before 1992 for the rebate to be paid. Although the Tribunal sympathizes with the appellant, there is no authority in the Excise Tax Act allowing payment of the rebate to the appellant.
Tribunal Members: Robert C. Coates, Q.C., Presiding Member Raynald Guay, Member Lyle M. Russell, Member
Counsel for the Tribunal: David M. Attwater
Clerk of the Tribunal: Anne Jamieson
Appearances: William M. Hoops, for the appellant Lyndsay K. Jeanes, for the respondent
This is an appeal under section 81.19 of the Excise Tax Act [1] (the Act) of a determination of the Minister of National Revenue (the Minister) that rejected an application for a federal sales tax (FST) inventory rebate made under section 120 [2] of the Act. The issue in this appeal is whether the appellant's application was filed with the Minister before 1992 as prescribed by subsection 120(8) of the Act and, if not, whether the appellant is entitled to the rebate notwithstanding the application being filed outside the application period. The appeal proceeded by way of conference call.
For purposes of this appeal, the relevant provisions of section 120 of the Act are as follows:
(3) Subject to this section, where a person who, as of January 1, 1991, ... has any tax-paid goods in inventory at the beginning of that day,
(a) where the tax-paid goods are goods other than used goods, the Minister shall, on application made by the person, pay to that person a rebate in accordance with subsections (5) and (8);
(8) No rebate shall be paid under this section unless the application therefor is filed with the Minister before 1992.
Both Mr. Carl McGowen, President of Wellsley Investments Inc., and the appellant's representative addressed the Tribunal, reiterating and supplementing the written submissions and other documents filed on behalf of the appellant. It was acknowledged that the application for the FST inventory rebate was mailed on December 9, 1992, and received by the Department of National Revenue on or about December 14, 1992.
The Tribunal was informed that, in the late 1980s, the appellant went bankrupt, and through re-structuring, hard work and a very heavy schedule of payments, the appellant's debts were retired by late 1990. However, in doing so, the appellant's accounting was left about two years behind and not made current until late 1992. Mr. McGowen indicated that, under the circumstances, he was unaware of the filing deadline for the FST inventory rebate.
It was argued on behalf of the appellant that late filing should not invalidate the appellant's entitlement to the rebate; otherwise, the appellant will be subjected to double taxation. Furthermore, it was submitted that the Tribunal has the authority to extend the filing deadline for the rebate.
Counsel for the respondent argued that subsection 120(8) of the Act clearly provides that no rebate shall be paid under the Act unless the application is filed before 1992. Counsel reminded the Tribunal that the appellant's application was not mailed until December 9, 1992, well beyond the statutorily prescribed application deadline. Furthermore, there is no provision in the Act that grants authority to the Tribunal to waive, extend or alter the time limitation for filing an application for an FST inventory rebate.
In making its decision, the Tribunal acknowledges that its jurisdiction is strictly limited by statute and that it lacks the authority to render a decision based on equity or fairness. While the appellant's application for the rebate may have been filed late for good reasons, it was acknowledged not to have been filed before 1992. The Act is clear in requiring the application to be filed with the Minister before 1992 for the rebate to be paid. Although the Tribunal sympathizes with the appellant, there is no authority in the Act allowing payment of the rebate to the appellant.
Accordingly, the appeal is dismissed.
[ Table of Contents]
1. R.S.C. 1985, c. E-15.
2. S.C. 1990, c. 45, s. 12, as amended by S.C. 1993, c. 27, s. 6.
Initial publication: December 2, 1996