Date: 20030331
Docket: 2000-5062(GST)I
BETWEEN:
HALLMARK POULTRY PROCESSORS LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Agent for the Appellant: Gérald Melanson
Counsel for the Respondent: Pierre Séguin
____________________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Montréal, Québec, on December 4, 2001)
McArthur J.
[1] This is an appeal ostensibly by Hallmark Poultry Processors Limited from an assessment by the Minister of National Revenue under the Excise Tax Act for goods and services tax. The Appellant was represented by Gérald Melanson, a customs specialist with Tower Group International Inc.
[2] The facts briefly are as follows. The Tower Group, a brokerage firm, in error paid GST in the amount of $2,470 upon the import of meat products. It is my understanding that Tower Group's client was London Foods. The matter became somewhat confused in that Hallmark, the Appellant, had the quotas for the chicken and ribs that were imported and they are noted as the legal party, and the Appellant is in the business of processing poultry and was the importer of record for this transaction.
[3] The Tower Group attempted to re-correct the error and obtain its $2,470 through the London Group and finally through the Appellant, Hallmark. The application was first made through London Foods. London Foods having no financial interest in seeing that the money was refunded did not cooperate. Hallmark, upon request of the Tower Group, then made application outside the two-year limit provided for in subsection 261(3) of the Act.
[4] There is no doubt that the meat products were exempt and the $2,470 was not exigible. Mr. Melanson very fairly presented the case evidence on behalf of the Appellant and entered a bundle of documents as Exhibit A-1. He has no argument with the assumptions in the Reply to the Notice of Appeal. His position is that he and the London Group were misled by the officers of the Revenue Canada dealing with GST in reply to London Foods' first application and that on compassionate and equitable grounds, his company should receive the $2,470.
[5] Subsection 261(3) clearly states that a rebate for a payment made in error shall not be paid unless the taxpayer files an application for rebate within two years after the day the amount was paid. Clearly, Tower Group paid the $2,470 outside the two-year limit. While the amount was paid in error and the Appellant presents a deserving equitable position, I cannot change the legislation. Only the Canadian Parliament has that jurisdiction. Given the facts as presented, I recommend that favourable consideration be given to an application if made under the Financial Administration Act. The appeal is dismissed.
Signed at Ottawa, Canada, this 31st day of March, 2003.
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"C.H. McArthur" |
J.T.C.C.
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COURT FILE NO.: |
2000-5062(GST)I |
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STYLE OF CAUSE: |
Hallmark Poultry Processors Ltd. and Her Majesty the Queen |
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PLACE OF HEARING: |
Montréal, Québec |
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DATE OF HEARING: |
December 4, 2001 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge C.H. McArthur |
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DATE OF JUDGMENT: |
December 11, 2001 |
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APPEARANCES: |
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Agent for the Appellant: |
Gérald Melanson |
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Counsel for the Respondent: |
Pierre Séguin |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
N/A |
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Firm: |
N/A |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |