97-3645(GST)I
BETWEEN:
GITA DIEM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
The Honourable Judge D.G.H. Bowman
ORDER
Whereas the appeal was dismissed pursuant to subsection 18.21(1) of the Tax Court of Canada Act;
And whereas the Appellant has applied under subsection 18.21(2) of that Act to have the dismissal set aside and the appeal set down for hearing;
The application is dismissed and the judgment of November 9, 1998 stands in accordance with the Reasons for Order.
Signed at Ottawa, Canada, this 16th day of June 1999.
|
"D.G.H. Bowman" |
J.T.C.C.
Date: 19990616
Docket: 97-3645(GST)I
BETWEEN:
GITA DIEM,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bowman, J.T.C.C.
[1] In this motion the appellant seeks to have set aside a judgment dismissing her appeal.
[2] The appeal from an assessment made under the Excise Tax Act came on before me on October 22, 1998. No one appeared on behalf of the appellant and the appeal was dismissed.
[3] Section 18.21 of the Tax Court of Canada Act reads:
18.21(1) Where an appellant does not appear on the day fixed for the hearing, or obtain an adjournment of the hearing, of an appeal, the Court shall, on application by the respondent and whether or not the appellant has received notice of the application, order that the appeal be dismissed, unless the Court is of the opinion that circumstances justify that the appeal be set down for hearing at a later date.
(2) An appellant whose appeal has been dismissed pursuant to subsection (1) may apply to have the order of dismissal set aside and the appeal set down for hearing.
(3) The Court may set aside an order of dismissal made under subsection (1) where
(a) it would have been unreasonable in all the circumstances for the appellant to have attended the hearing; and
(b) the appellant applied to have the order of dismissal set aside as soon as circumstances permitted the application to be brought but, in any event, not later than one hundred and eighty days after the day on which the order was mailed to the appellant.
[4] The appellant moves under subsection 18.21(3) to set aside the order of dismissal.
[5] The appeal involved a claim for an additional rebate of $1,336.93 in respect of a motorcycle purchased on October 1, 1994 and exported from Canada on March 1, 1995. The claim for a rebate is made under subsection 252(1) of the Excise Tax Act. That subsection permits a rebate of tax to a non-resident in respect of property acquired for use primarily outside of Canada provided that the property is exported from Canada within 60 days from the date of delivery.
[6] Before the date of hearing the appellant, on October 2, 1998 wrote to the Court as follows:
I refer to the above Hearing scheduled for October 22, 1998 at 9.30 hrs at the Tax Court of Canada, Suite 902, Merrill Lynch Canada Tower, 200 King Street West. Please be advised that I currently reside in Switzerland and as such it will not be possible for me to appear for this hearing. Additionally, as it would be too costly for me to appoint a Power of Attorney, I would like to request that you go ahead with the hearing in my absence, taking into consideration the attached documents and correspondence and the following:
I acknowledge that my vehicle was purchased on October 1, 1994 and picked up at Racer's Edge Ltd, Milton Ontario on December 28, 1994. I also acknowledge that as per the Bill of Lading the vehicle was exported out of Canada on March 01, 1995, this being 63 days after receipt of the object and not 60 days. I however, respectfully ask that you consider my attached letter of July 01, 1998 where I outline factors which I submit for consideration in my favour in the case.
[7] I dismissed the appeal on the basis of the appellant's failure to appear. However even if I had proceeded as requested on the basis of the material on the file, and specifically the appellant's letter and the assumptions pleaded in the reply to the notice of appeal (which, if unrebutted, stand) I would still have dismissed the appeal in light of the appellant's acknowledgement that the vehicle was exported 63 days after the date of delivery.
[8] In considering whether to set aside the dismissal one of the factors that should be taken into account is whether there is any merit in the appeal. Here I find that on the basis of the material on the file the appeal has no hope of succeeding. Subsection 252(1) is quite clear and there is no discretion in the Minister or the Court to permit an extension of the 60 days referred to therein.
[9] The application is dismissed.
Signed at Ottawa, Canada, this 16th day of June 1999.
|
"D.G.H. Bowman" |
J.T.C.C.
COURT FILE NO.: 97-3645(GST)I
STYLE OF CAUSE: Between Gita Diem and
Her Majesty The Queen
REASONS FOR ORDER BY: The Honourable D.G.H. Bowman
DATE OF REASONS
FOR ORDER: June 16, 1999
COUNSEL OF RECORD:
For the Appellant:
Name: --
Firm: --
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada