Date: 20040720
Docket: ITA-2025-04
Citation: 2004 FC 1014
In re the Income Tax Act
- and -
In re one or more assessments by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
AGAINST:
PIERRE BENOÎT
Judgment debtor
and
CHANTALE GUÉRIN
Objector
and
MAXIME DUBOIS
Objector
REASONS FOR ORDER
RICHARD MORNEAU, PROTHONOTARY
[1] In the case at bar the Court is required to rule on the objections made by two objectors pursuant to article 597 of the Code of Civil Procedure (C.C.P.) against a seizure in execution made on April 14, 2004. The property seized was furniture at 2170 Henri-Cyr Street, Longueuil and a green 1997 Plymouth Neon, licence number 526 HYW, serial number IP3FS476VD306899 (the vehicle).
[2] The objector Maxime Dubois, the son of the judgment debtor Pierre Benoît's spouse by a first marriage, objected to seizure of the vehicle on the ground that he owns it.
[3] The objector Chantale Guérin, the spouse of the judgment debtor Pierre Benoît, asked that the seizure be quashed on the ground that the furniture listed in the affidavit is her property (the furniture seized).
[4] The two objectors put forward two grounds of opposition to the seizure in common which we will first assess, and then consider the grounds of objection raised by each of the objectors.
Joint grounds of objection
[5] In an affidavit filed against the objections at issue, the collection officer acting for the Canada Revenue Agency indicated the following regarding the tax debt of the judgment debtor:
[TRANSLATION]
1. I am the collection officer handling the Pierre Benoît case;
2. Pierre Benoît is indebted to the Revenue Agency pursuant to the issuing of assessments for appropriations of funds relating to the company 2866-0579 Québec Inc., in which he is the sole shareholder;
3. The detail of the assessments is as follows:
|
Date of assessment |
Years |
Taxes |
Penalties and interest at May 6, 2004
|
Balance |
|
March 15, 2004 |
1992 |
$380.58 |
$761.89 |
$1,142.47 |
|
March 15, 2004 |
1993 |
$227.04 |
$405.26 |
$632.30 |
|
March 15, 2004 |
1994 |
$153.52 |
$240.84 |
$394.36 |
|
March 15, 2004 |
1995 |
$65.29 |
$84.55 |
$149.84 |
|
March 15, 2004 |
1996 |
$535.85 |
$590.94 |
$1,126.79 |
|
June 2, 2003 |
1997 |
$6,733.53 |
$6,327.14 |
$13,060.67 |
|
June 2, 2003 |
1998 |
$14,175.89 |
$10,953.97 |
$25,129.86 |
|
June 2, 2003 |
1999 |
$26,210.55 |
$16,205.54 |
$42,416.09 |
|
June 2, 2003 |
2000 |
$20,763.59 |
$9,646.03 |
$30,409.62 |
|
June 2, 2003 |
2001 |
$1,368.07 |
$443.68 |
$1,811.75 |
|
May 6, 2004 |
2002 |
$100.12 |
$18.35 |
$118.47 |
Outstanding balance at May 6, 2004 $116,392.22
4. The assessments made on June 2, 2003, have never been disputed;
5. Pursuant to these assessments, a certificate relating solely to the debts owed for 1997 to 2001 was issued on February 20, 2004, in an amount of $110,563.88, plus interest compounded daily as of January 22, 2004 . . .
[6] The first argument put forward by the objectors results from paragraph 5 of the affidavit. According to their counsel, and contrary to paragraph 5, the certificate referred to in that paragraph does not indicate that it applies solely to the tax years 1997 to 2001. Counsel for the objectors accordingly alleged that in this sense the certificate in the case at bar does not comply with the requirements and creates confusion in his clients' minds. For this reason, the certificate on which the seizure at issue was based is invalid and the seizure should fail.
[7] However, counsel for the objectors was not able to provide persuasive support in law of his allegation regarding the vagueness of the certificate in question. It can be assumed that this certificate was obtained and prepared in the same way as hundreds of others and counsel for the objectors would have to have done something more than merely making such an allegation at the hearing. The objectors' motion record contains no evidence of any detriment or confusion which such vagueness may have created in fact.
[8] A second argument made by the objectors was that the judgment debtor's tax debt was prescribed and the seizure therefore could not stand.
[9] In Markevich v. Canada, [2003] 1 S.C.R. 94, the Supreme Court of Canada recently ruled on the question of the prescription period to which collection is subject under the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1, as amended (the ITA). At 118, the Court unanimously, with one dissent, said the following:
I conclude that the collection proceedings under the ITA are subject to prescription six years after the cause of action arose. As noted above, the cause of action in this case comprised the respondent's tax debt and the expiry of the 90-day delay period after the mailing of the Notice of Assessment dated June 17, 1986.
[10] Accordingly, Markevich set the prescription period for collection of a tax debt at six years, from expiry of the 90-day period after mailing of the notice of assessment.
[11] Further, following Markevich amendments were made to the ITA on May 13, 2004 (Bill C-30, section 50, amending section 222 ITA).
[12] Essentially, the new subsection 222(4) of the ITA reads:
|
(4) The limitation period for the collection of a tax debt of a taxpayer |
(4) Le délai de prescription pour le recouvrement d'une dette fiscale d'un contribuable :
|
|
(a) begins |
a) commence à courir : |
|
(i) if a notice of assessment, or a notice referred to in subsection 226(1), in respect of the tax debt is mailed to or served on the taxpayer, after March 3, 2004, on the day that is 90 days after the day on which the last one of those notices is mailed or served, and |
(i) si un avis de cotisation, ou un avis visé au paragraphe 226(1), concernant la dette est posté ou signifié au contribuable après le 3 mars 2004, le quatre-vingt-dixième jour suivant le jour où le dernier de ces avis est posté ou signifié, |
|
(ii) if subparagraph (i) does not apply and the tax debt was payable on March 4, 2004, or would have been payable on that date but for a limitation period that otherwise applied to the collection of the tax debt, on March 4, 2004; and |
(ii) si le sous-alinéa (i) ne s'applique pas et que la dette était exigible le 4 mars 2004, ou l'aurait été en l'absence de tout délai de prescription qui s'est appliqué par ailleurs au recouvrement de la dette, le 4 mars 2004 ; |
|
(b) ends, subject to subsection (8), on the day that is 10 years after the day on which it begins.
[Emphasis added.] |
b) prend fin, sous réserve du paragraphe 8, dix ans après le jour de son début. |
[13] Since the notices of assessment for the taxation years 1997 to 2001 were issued on June 2, 2003, there can be no question here of ruling pursuant to Markevich or the ITA that the tax debt covered by the certificate is prescribed. The objectors' second argument must accordingly also be dismissed.
Arguments relating to each objector
[14] The only remaining argument relating to Maxime Dubois is that the vehicle is his property. However, Mr. Dubois' counsel conceded at the hearing that this statement was a simulation, since it appears in the motor vehicle registration that the car belongs to the judgment-debtor Pierre Benoît. The insurance documents are to the same effect. This simulation simply enabled Mr. Dubois to obtain insurance coverage at a reasonable cost.
[15] Articles 1451 and 1452 of the Civil Code of Quebec (C.C.Q.) read as follows:
Art. 1451. Simulation exists where the parties agree to express their true intent, not in an apparent contract, but in a secret contract, also called a counter letter.
Between the parties, a counter letter prevails over an apparent contract.
Art. 1452. Third persons in good faith may, according to their interest, avail themselves of the apparent contract or the counter letter; however, where conflicts of interest arise between them, preference is given to the person who avails himself of the apparent contract.
[16] In view of this simulation the judgment creditor chose, as provided for in article 1452 C.C.Q., to avail itself of the apparent contract, which amounts to saying that Pierre Benoît was owner of the vehicle seized.
[17] The personal argument made by Mr. Dubois therefore cannot be accepted and his objection to the seizure must accordingly be dismissed.
[18] Chantale Guérin argued that the furniture seized belonged to her.
[19] However, the affidavit she submitted in the case at bar did not establish that it was she, not her spouse, who owned the said property.
[20] Even if it were admitted for the sake of argument that Ms. Guérin participated in the ownership of this property, she still submitted very little in the way of invoices for the property seized. Further, the evidence was that she has had no income (except possibly for family allowances for her two children) or employment since 1997.
[21] Three of the pieces of furniture seized (a folding armchair, a sofa and another chair) claimed by Ms. Guérin were actually financed by financing obtained by her spouse, the judgment debtor in the case at bar.
[22] I agree with the judgment creditor in saying that the fact the objector undertook to state that the reclining armchair, the sofa and the other chair seized were her property despite the fact that the financing was in her spouse's name so vitiates her credibility that the Court cannot accept without invoices that the other property she said was hers really was owned by her.
[23] In view of the foregoing reasons, the objector did not persuade the Court that it was she and not her spouse who was owner of the furniture seized. Consequently, her objection must also be dismissed.
[24] An order will be made accordingly.
|
|
"Richard Morneau"
Prothonotary |
Montréal, Quebec
July 20, 2004
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: ITA-2025-04
STYLE OF CAUSE: In re the Income Tax Act
- and -
In re one or more assessments by the Minister of National Revenue pursuant to one or more of the following statutes: the Income Tax Act, the Canada Pension Plan and the Employment Insurance Act
AGAINST:
PIERRE BENOÎT
Judgment debtor
and
CHANTALE GUÉRIN
Objector
and
MAXIME DUBOIS
Objector
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: July 12, 2004
REASONS FOR ORDER: Richard Morneau, Prothonotary
DATED: July 20, 2004
APPEARANCES:
Julie Mousseau for the judgment creditor
Marc E. Barchichat for the objectors
SOLICITORS OF RECORD:
Morris Rosenberg for the judgment creditor
Deputy Attorney General of Canada
Barchichat et Associés for the objectors
Montréal, Quebec