Docket: A-431-04
BETWEEN:
and
Heard at Edmonton, Alberta, on May 17, 2005.
Judgment delivered from the Bench at Edmonton, Alberta, on May 17, 2005.
REASONS FOR JUDGMENT BY: PELLETIER J.A.
CONCURRED IN BY: SEXTON J.A.
EVANS J.A.
Docket: A-431-04
Citation: 2005 FCA 192
CORAM: SEXTON J.A.
EVANS J.A.
PELLETIER J.A.
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
and
TRIPLE G CORPORATION INC.
Respondent
REASONS FOR JUDGMENT
(Judgment delivered from the Bench at Edmonton, Alberta, on May 17, 2005)
PELLETIER J.A.
[1] We are all of the view that the appeal must be allowed and the cross appeal dismissed.
[2] The appellant moved the court to transfer the respondent's appeal from the informal procedure to the general procedure under the Tax Court of Canada Act, R.S.C. 1985 c. T-2 (the Act). As a result of that transfer, the Court was bound to make an order that all of the respondent's reasonable and proper costs were to be borne by Her Majesty if the "amount in dispute" did not exceed $7,000.
[3] The appeal was with respect to three notices of reassessment covering 12 different reporting periods. The Tax Court judge found that the amount in dispute in each of the first two notices of assessment was less than $7,000 but that it was more than $7,000 in the case of the third, which covered ten reporting periods. Accordingly, he made an order to the effect that the appellant was responsible for the reasonable and proper costs for the first two reassessments but not the third. The appellant appealed on the ground that no order ought to have been made with respect to costs, and the respondent cross-appealed on the ground that the order should have included all three reassessments.
[4] "Amount in dispute" is defined at s.2 of the Act. The definition includes "the amount of tax, net tax and rebate ... that is in issue in the appeal." In this case, the appeal was taken from three notices of reassessment. The amount in issue in the appeal was some $21,000. Consequently, the motions judge ought not to have made an order for costs.
[5] The cross-appellant says that this result will simply encourage taxpayers to file a separate appeal with respect to each notice of assessment or reassessment. The drafters of the Act anticipated this possibility by including in the definition of "amount in dispute" "any amount of tax, net tax, or rebate, ... that is likely to be affected by the appeal in any other appeal, assessment or proposed assessment of the person who brought the appeal". Consequently, where notices of assessment covering different reporting periods are appealed, it makes no difference for purposes of ss. 18.3002(3) whether one appeal is filed for all notices of assessment or whether each notice of assessment is the subject of a separate appeal. If they all turn on the same findings of fact or law, they are all to be included in the determination of amount in dispute.
[6] Even if one launched a separate appeal with respect to each reporting period covered by a notice of assessment or reassessment, this would not change the result any more than does the possibility of a separate appeal in respect of each notice of assessment. Both would be caught by the extended definition of "amount in dispute" at ss. 2.2(2)(c)(iii).
[7] Therefore, the motions judge erred in making an order with respect to the costs associated with two of the three notices of reassessment. He ought to have declined to make an order as to costs under ss.18.3002(3). Therefore the appeal will be allowed and the cross appeal dismissed, with costs.
"J.D. Denis Pelletier"
________________________
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
(APPEAL AND CROSS-APPEAL FROM AN ORDER OF THE TAX COURT OF CANADA DATED August 13, 2004, Docket No. 2003-4140(GST)G)
STYLE OF CAUSE: THE QUEEN v.
TRIPLE G CORPORATION INC
PLACE OF HEARING: Edmonton, AB
REASONS FOR JUDGMENT OF THE COURT Sexton, Evans, Pelletier JJ.A.
DELIVERED FROM THE BENCH BY: Pelletier J.A.
APPEARANCES:
| Marta Burns |
FOR THE APPELLANT
|
| Gordon D. Beck |
FOR THE RESPONDENT
|
| John H. Sims, Deputy Attorney General of Canada Ottawa, ON
|
FOR THE APPELLANT
|
| Field LLP Edmonton, AB |
FOR THE RESPONDENT
|