THE BRITISH COLUMBIA MENTAL HEALTH SOCIETY
Decisions
v.
THE MINISTER OF NATIONAL REVENUE
Appeal No. AP-95-066
TABLE OF CONTENTS
Ottawa, Friday, October 25, 1996
Appeal No. AP-95-066
IN THE MATTER OF an appeal heard on May 16, 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 March 10, 1995, with respect to a notice of objection served under section 81.17 of the Excise Tax Act.
BETWEEN
THE BRITISH COLUMBIA MENTAL HEALTH SOCIETY Appellant
AND
THE MINISTER OF NATIONAL REVENUE Respondent
The appeal is dismissed.
Robert C. Coates, Q.C. ______ Robert C. Coates, Q.C. Member
Desmond Hallissey ______ Desmond Hallissey Member
Susanne Grimes ______ Susanne Grimes Acting Secretary
The appellant's application for a federal tobacco tax inventory rebate was dated August 9, 1994, and received by the respondent on August 16, 1994. The issue in this appeal is whether the application for rebate is statute barred under subsection 68.162(3) of the Excise Tax Act.
HELD: The appeal is dismissed. The Tribunal finds that the terms of subsection 68.162(3) of the Excise Tax Act are clear, that a person must apply for a federal tobacco tax inventory rebate before August 9, 1994. In this case, the appellant's application was dated August 9, 1994, and not received by the respondent until August 16, 1994. As such, the Tribunal finds that the appellant did not apply for the rebate before August 9, 1994, as prescribed by the Excise Tax Act.
Tribunal Members: Raynald Guay, Presiding Member Robert C. Coates, Q.C., Member Desmond Hallissey, Member
Counsel for the Tribunal: Heather A. Grant
Clerk of the Tribunal: Anne Jamieson
Parties: Harry Y. Ching, for the appellant Josephine A.L. Palumbo, for the respondent
This is an appeal under section 81.19 of the Excise Tax Act [1] (the Act) of a decision of the Minister of National Revenue that rejected the appellant's application for a federal tobacco tax inventory rebate.
The appellant operates a hospital which provides specialized services for people with mental illnesses. The appellant has two retail outlets which sell, among other items, tobacco products to patients at the hospital. The appellant's application for a federal tobacco tax inventory rebate was in the amount of $2,887.89 with respect to tax-paid inventory held as of February 9, 1994. The application was dated August 9, 1994, and received by the respondent on August 16, 1994.
In a notice of determination dated September 8, 1994, the respondent rejected the appellant's application on the grounds that the actual inventory count was not taken on February 9, 1994. The appellant served a notice of objection to the determination, which was received on November 14, 1994. In a notice of decision dated March 10, 1995, the respondent disallowed the objection and confirmed the determination on the basis that the application was not filed within the limitation period prescribed by the Act. On June 6, 1995, the appellant appealed the respondent's decision.
The issue in this appeal is whether the application for rebate is statute barred under subsection 68.162(3) of the Act.
This appeal proceeded by way of written submissions under rule 25 of the Canadian International Trade Tribunal Rules, [2] on the basis of the Tribunal's record, including an agreed statement of facts and briefs submitted by the parties.
Section 68.162 of the Act provides, in part, as follows:
(2) The Minister may pay to a person who held tax-paid manufactured tobacco in the person's inventory at the beginning of February 9, 1994 a tax rebate
(3) To qualify to receive a rebate under subsection (2), a person must
(a) determine the inventory of tax-paid manufactured tobacco held by the person at the beginning of February 9, 1994; and
(b) apply to the Minister for the rebate before August 9, 1994 in any form and manner that is authorized by the Minister.
In its brief, the appellant submitted that the respondent's basis for disallowing the appellant's objection was not fair and asked the Tribunal to take into consideration a number of special circumstances and allow its appeal. The special circumstances, to which the appellant referred, were that the application forms were not available in March and April 1994 and that it did not receive a copy of the form until August 1994. Furthermore, it submitted that the time period in which to apply for a rebate was inadequate and significantly shorter than in the case of other refund or rebate claims.
The respondent submitted that the time limit for filing an application for a federal tobacco tax inventory rebate is specifically determined by statute and that the appellant's application was filed outside the time limit. The respondent further submitted that the time limitations set out in the Act must be strictly complied with and that the Tribunal has no jurisdiction to grant equitable remedies and is bound to apply the law.
The Tribunal finds that the terms of subsection 68.162(3) of the Act are clear, that a person must apply for a federal tobacco tax inventory rebate before August 9, 1994. In this case, the appellant's application was dated August 9, 1994, and not received by the respondent until August 16, 1994. As such, the Tribunal finds that the appellant did not apply for the rebate before August 9, 1994, as prescribed by the Act.
Although the Tribunal sympathizes with the appellant's situation, it has no jurisdiction to apply principles of equity. [3] Consequently, it cannot exempt the appellant from the application of the time limitation prescribed by subsection 68.162(3) of the Act.
Accordingly, the appeal is dismissed.
[ Table of Contents]
1. R.S.C. 1985, c. E-15.
2. SOR/91-499, a ugust 14, 1991, Canada Gazette Part II, Vol. 125, No. 18 at 2912.
3. See, for example, Pelletrex Ltée v. The Minister of National Revenue , Canadian International Trade Tribunal, Appeal No. AP-89-274, October 15, 1991, and the decisions mentioned therein.
Initial publication: October 28, 1996