Brar v. The Queen

Brar v. The Queen Court (s) Database Tax Court of Canada Judgments Date 2003-06-10 Neutral citation 2003 TCC 460 File numbers 2003-963(GST)I Judges and Taxing Officers Diane Campbell Subjects Part IX of the Excise Tax Act (GST) Decision Content IN THE TAX COURT OF CANADA In Re: The Excise Tax Act Vancouver, B.C. 2003-963(GST)I June 10, 2003 BETWEEN: HARLEEN BRAR BALWINDER BRAR Appellant AND: HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE D. CAMPBELL APPEARANCES: H.B.B. Balwinder On his own behalf J. Russell On behalf of the Respondent Registrar: L. Giles Per: J. Piper VERBATIM WORDS WEST LTD. #2026 - 7495 - 132nd Street, Surrey, B.C. V3W 1J8 Phone (604) 591-6677 Fax (604) 591-1567 REASONS FOR JUDGMENT (Delivered orally from the Bench at Vancouver, B.C., on Tuesday, June 10, 2003) HER HONOUR: I am delivering oral judgment, then, in the matter that was heard this morning of Harleen Balwinder Brar. This motion was brought by the respondent for an order to quash the appellant's appeal. A notice of assessment for the period January 1, 1997 through to December 31st, 1998 was forwarded to the appellant on December 15th, 2000. The appellant filed a notice of objection on March the 14th, 2001. As a result of efforts to resolve the matter, on November the 8th, 2002 the appellant signed a waiver of right of objection or appeal. This document specifically quoted the relevant provision here, that is, s. 306.1(2) of the Excise Tax Act, and it further stated that the appellant was aware that he would be precluded from filing an objection or an appeal with respect to the issue. The waiver also specifically refers to it being in respect to GST remittances and input tax credits for the 1997 and 1998 taxation years. Subsequently, on December 9th, 2002 a notice of reassessment issued in accordance with this agreement and waiver, and covering the period January 1, 1997 to December 31st, 1998. The appellant's position is that he did not know the consequences of signing the waiver. He understood that he would still have the right to object and appeal the matter even though he had executed a waiver. He did state that he realized that he and the auditor had reached a settlement on figures. Exhibit R-1 was correspondence from the appellant's general accountant to a John Asher of the department's Appeals Division. The Appeals Officer gave evidence that the amounts contained in this correspondence, and provided by the appellant, were used as a basis of the reassessment. She further indicated that up to the time the waiver was executed there was nothing to indicate that the appellant's position had changed. Sections 302 and 306 specifically set forth the statutory time frames for appealing to this Court under the Act. Subsection 306.1(2) states: Notwithstanding sections 302 and 306, a person may not appeal to the Tax Court to have an assessment vacated or varied in respect of an issue for which the right of objection or appeal has been waived in writing by the person. This section applies directly to the circumstances of this case. Respondent counsel advised that she was unable to locate any specific case law directly on point. Although I was limited to a brief noon recess before delivering judgment, my research did not disclose any relevant case law on point either. Counsel referred me to the case of Rainville v. R., 2001 DTC 155, which did deal with the identical s. 169 in the Income Tax Act. That decision found that the assessment was not in keeping with the agreement that the parties had reached, and that certain issues had not been contemplated by the parties, and, therefore, the appeal was allowed. Clearly, here I must, on the evidence presented, decide if the appellant, in executing the waiver, meant to waive the matters which he is attempting to appeal. The appellant's Notice of Appeal identifies and refers to GST issues respecting one of his properties being the Richmond property. The notice clearly refers to this property. In the appellant's Notice of Objection of March 14th, 2001, he clearly identifies this Richmond property as being at issue for the GST remittances. This issue was, therefore, clearly raised and identified at this stage. In the waiver form the appellant clearly and expressly waives his rights to object or appeal. In fact, the form goes one step farther in not only referring to subsection 306.1(2) of the Act, but the form goes on to reproduce the section and highlight it within block lines. The form also clearly refers to the taxation years 1997 and 1998. The case of Rainville is distinguishable from the facts of the present one, in that I have not been shown that a specific issue or matter was not contemplated and dealt with at the various stages prior to the waiver being signed. In fact, it was the evidence of the Appeals Officer that the reassessment was issued on the basis of the figures and amounts contained in Exhibit R-1 provided to the Department by the appellant's accountant. As a result, the respondent's motion to quash the appellant's appeal is granted on the basis that the appeal does not conform with the statutory requirements of the Excise Tax Act or more specifically, I conclude that the appellant has no right to appeal to this Court in light of the waiver document which he executed pursuant to s. 306.1(2) of the Act. I HEREBY CERTIFY THAT THE FOREGOING is a true and accurate transcript of the proceedings herein to the best of my skill and ability. B. Kettleson, Transcriber CITATION: 2003TCC460 COURT FILE NO.: 2003-963(GST)I STYLE OF CAUSE: Harleen K. Brar & Balwinder S. Brar and Her Majesty the Queen PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: June 10, 2003 REASONS FOR JUDGMENT BY: The Honourable Justice Diane Campbell DATE OF ORAL JUDGMENT: June 10, 2003 APPEARANCES: Agent for the Appellant: Balwinder Brar Counsel for the Respondent: Johanna Russell COUNSEL OF RECORD: For the Appellant: Name: Firm: For the Respondent: Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada