Thursday, 13 September 2012

The assessments cannot be vacated by this Court on grounds that the legislation provides an unfair result in the appellant’s circumstances. A similar statement was made in Main Rehabilitation: In our view, it is not open to the Tax Court to set aside a tax reassessment on the ground that the taxpayer ought to have been given the same favourable treatment as others who are similarly situated . The Supreme Court confirmed in 2005 in Her Majesty the Queen v Canada Trustco Mortgage Company and Mathew v. Canada, [2005] 2 S.C.R. 643, 2005 / Eugene Kaulius, et. al v Her Majesty the Queen its longstanding position that the provisions of the Tax Act must be interpreted to achieve consistency, predictability and fairness so that taxpayers can manage their affairs intelligently. The Supreme Court also established in 2005 that the Canada Revenue Agency (and a court) has considerable scope for creativity in developing the purpose of the relevant provision(s) against which the facts will be considered and examined . SUPREME COURT RULES ON GENERAL ANTI-AVOIDANCE RULE. HTTP://WWW.INTERNATIONALLAWOFFICE.COM/NEWSLETTERS/DETAIL.ASPX?G=4348A527-0EAE-4BC3-A4B2-391CC1E4751E upholding a system in which the CRA has successfully dismissed legal claims against it based on the misfeasance of their officials . The Tax Court has often held that it cannot consider the behavior of the CRA, only the correctness of the assessment . Taxpayers have been told by the Federal Court or the provincial superior courts, that the court has no jurisdiction because the claim is a collateral attack on a reassessment [because the correctness of the assessment itself was not challenged] . In short, no court would give relief . Some mechanism to control CRA abuses that do arise must exist . If a taxpayer can complain to no court, then there is no mechanism by which CRA officials can be held to account. For example Leroux has been pursuing an open and shut case of CRA misfeasance. The improper behavior of the CRA officials took place in 1996, the matter continues unresolved. This is contrary to the rule of law which requires that public officials be held to account (in a timely manner) for improper behavior , . 16. There are other instances in which the Income Tax Act has been shown to be improperly framed. Chief Justice Gerald Rip could not hear Giovanni Tozzi’s case because he did not owe any tax. Tozzi appealed to the Tax Court of Canada after the CRA rejected his application for a disability certificate to create a Registered Disability Savings Plan (RDSP). As a taxpayer he could not object to a “nil assessment” , the Tax Court of Canada had no jurisdiction to hear the case . Main Rehabilitation Co. v. Canada, 2004 FCA 403 Leroux v. Canada Revenue Agency, 2010 BCSC In Sorbara v. Canada (Attorney General), 2009 ONCA 506, the Ontario Court of Appeal held that the Ontario Superior Court of Justice does not have jurisdiction to hear an application relating to liability for GST under the EXCISE TAX ACT (Canada). Parliament has given exclusive jurisdiction over that kind of question to the Tax Court of Canada. The appellant’s application for leave to appeal to the Supreme Court of Canada was dismissed with costs (2009 CanLII 61389). A Taxpayer Can Finally Sue the CRA for Bad Behavior - Tax Newsletter - January 2011. Roncarelli v. Duplessis. Finance Minister Jim Flaherty pledged to widen the ability of a taxpayer to file a notice of objection and an appeal to the Tax Court of Canada based on the Tozzi case (Toronto Star, Nov 23, 2010).