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Docket: 2002-1384(GST)I |
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BETWEEN: |
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THOMAS SCAPILLATO, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
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Appeal heard on November 4, 2002, at Vancouver, British Columbia
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Before: The Honourable Judge Michael J. Bonner |
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Appearances: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Michael Taylor |
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JUDGMENT
The appeal from the assessment made under Part IX of the Excise Tax Act, is dismissed.
Signed at Toronto, Ontario, this 17th day of March 2003.
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"Michael J. Bonner" |
T.C.J.
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Citation: 2003TCC111 |
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Date: 20030317 |
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Docket: 2002-1384(GST)I |
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BETWEEN: |
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THOMAS SCAPILLATO, |
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Appellant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR JUDGMENT
Bonner, T.C.J.
[1] This is an appeal from an assessment under Part IX of the Excise Tax Act (the "Act"). The Minister of National Revenue (the "Minister") refused the Appellant's application for a rebate of GST paid by the Appellant in respect of the supply of a motor home. He did so on the basis that the application was filed late. The principal issue is whether the application for the rebate was filed within the one-year period following export of the property to which the rebate applied as required by s. 252.2 of the Act.
[2] The applicable statutory provisions are:
252. (1) - Where a non-resident person is the recipient of a supply of tangible personal property acquired by the person for use primarily outside Canada, other than
...
and the person exports the property within sixty days after it is delivered to the person, the Minister shall, subject to section 252.2, pay a rebate to the person equal to the tax paid by the person in respect of the supply.
252.2 - A rebate shall not be paid under section 252 or subsection 252.1(2) or (3) to a person unless
(a) the person files an application for the rebate within one year after
(i) in the case of a rebate under subsection 252(1), the day the person exports the property to which the rebate relates,
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123. (1) - In section 121, this Part and Schedules V to X,
"export" means export from Canada;
[3] In January of 1999 the Appellant, a non-resident, entered into an agreement to purchase a motor home from a dealer in British Columbia. It was the Appellant's intention to take the vehicle to Arizona and to live in it there. The Appellant took delivery of the vehicle in April of 1999. He drove it from Alberta into Montana on April 20, 1999 with the intention, I infer, of bringing it to Arizona, keeping it in the United States and using it there indefinitely. At the time the Appellant was using dealer registration plates. The Appellant applied to register the vehicle in Montana.
[4] The vehicle remained in the United States until September of 1999 when the Appellant encountered problems with the United States Customs Service ("customs"). He was informed by customs that he must remove the vehicle from the United States unless he could establish that the vehicle complied with certain United States regulations. He was threatened with forfeiture of the vehicle if he failed to do one or the other. This led the Appellant to bring the vehicle back from the United States to Canada and to store it in this country until February 2000 when customs finally issued a consent to the importation of the vehicle into the United States. The vehicle was then returned to the United States and registration was issued there on November 22, 2000.
[5] On December 23, 2000 the Appellant mailed to the Minister a form of Application for Visitor Tax Refund. The document was received by the Minister on January 4, 2001.
[6] The assessment was made on the basis that:
(a) The Appellant exported the vehicle when he drove it into Montana on April 20, 1999,
(b) The Appellant's application for the rebate was filed after the expiry of the one-year limitation period laid down by s. 232.2(a) of the Act.
[7] The meaning of the word export was considered by the Supreme Court of Canada in Carling Export Brewing and Malting Co., [1930] S.C.R. 361 and the following was adopted:
... Generally speaking, export, no doubt, involves the idea of a severance of goods from the mass of things belonging to this country with the intention of uniting them with the mass of things belonging to some foreign country. It also involves the idea of transporting the thing exported beyond the boundaries of this country with the intention of effecting that.
The concept of uniting the goods with the mass of things belonging to a foreign country has given rise to difficulties in some fact situations.[1] Here however the evidence suggests that when the Appellant drove the vehicle from Alberta into the United States he did so with the intention of keeping and using it in that country. Nothing in the evidence suggests otherwise.
[8] The Appellant's position is that he did not export the vehicle from Canada before February 2000 when the vehicle was cleared by customs and was returned to the United States. He seems to suggest that customs clearance at least was a prerequisite to export from Canada if not both clearance and registration. He points out that the vehicle was not registered in the United States until November 2000. He relies on a pamphlet published by Revenue Canada (now the CCRA) entitled "Tax Refund for Visitors to Canada". The pamphlet states: "If you bought a vehicle you must provide (with the rebate application) the original bill of sale, documentation proving that the vehicle was exported, and a copy of the vehicle's registration in your own country". Clearly, in April 1999 the Appellant was unable to produce more than a bill of sale. He did not then have either customs clearance or a United States motor vehicle registration.
[9] The Appellant argues that the pamphlet is "the applicable document" governing the rebate issue. In my opinion it is pointless to consider whether the Minister, in assessing on the basis that the vehicle was exported in April 1999, has adopted an interpretation of the word "export" which is inconsistent with what may be inferred from the evidentiary requirements set out in his own pamphlet. The Court is obliged to decide the case in accordance with the statute, properly interpreted, and not in accordance with representations as to the state of the law whether expressed or implied in a document published by one of the parties. Moreover the pamphlet is clear that goods must be removed from Canada within 60 days of delivery to the visitor in order to qualify for the refund.
[10] The Appellant can succeed only if the property to which the rebate applies may be exported for purposes of s. 252(1) on one day and exported for purposes of s. 252.2 on another (later) day. Unfortunately the statute cannot be so construed. Section 252 is designed to offer tax relief to non-residents who export the property promptly after the supply in respect of which tax is imposed. The s. 252(1) sixty-day export rule is intended to discourage protracted use and enjoyment in Canada of property which will be tax-free. The s. 252.2 one-year rule is designed to bring about relatively prompt submission of rebate claims. These sections contemplate a sequence, supply, then export and then rebate application. To construe s. 252.2 as applicable to any export other than that which establishes compliance with the sixty-day rule would defeat the purpose underlying the s. 252.2 limitation by the introduction into the sequence of an export event that is of no relevance.
[11] In my view the vehicle was exported on April 20, 1999 as found by the Minister. The application was not filed for more than a year after that date and the s. 252.2 prohibition therefore applies. Accordingly, the appeal must be dismissed.
Signed at Toronto, Ontario, this 17th day of March 2003.
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"Michael J. Bonner" |
T.C.J.
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CITATION: |
2003TCC111 |
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COURT FILE NO.: |
2002-1384(GST)I |
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STYLE OF CAUSE: |
Thomas Scapillato and H.M.Q. |
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PLACE OF HEARING: |
Vancouver, British Columbia |
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DATE OF HEARING: |
November 4, 2002 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge Michael J. Bonner |
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DATE OF JUDGMENT: |
March 17, 2003 |
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APPEARANCES: |
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For the Appellant: |
The Appellant himself |
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Counsel for the Respondent: |
Michael Taylor |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |