Date: 20030325
Docket: A-469-02
Neutral citation: 2003 FCA 158
CORAM: DÉCARY J.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
NORMAN JOHN RAYMOND MACKINNON
Appellant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Respondent
Heard at Vancouver, British Columbia on March 24, 2003.
Judgment delivered at Vancouver, British Columbia on March 25, 2003.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Date: 20030325
Docket: A-469-02
Neutral citation: 2003 FCA 158
CORAM: DÉCARY J.A.
NOËL J.A.
SHARLOW J.A.
BETWEEN:
NORMAN JOHN RAYMOND MACKINNON
Appellant
and
HER MAJESTY THE QUEEN
IN RIGHT OF CANADA
Respondent
NOËL J.A.
[1] This is an appeal from a decision of a learned Motions Judge in which he found that the majority of the tax debt pertaining to the Appellant's 1979 through 1982 and 1997 taxation years, had not been extinguished by operation of the Limitation Act R.S.B.C. 1996, c.266. The Respondent cross-appeals that part of the decision holding that the remaining portion of the Appellant's tax debt was statute barred.
[2] Having regard to the recent decision of the Supreme Court in Markevich v. Canada, 2003 S.C.C. 9, the Respondent abandoned her cross-appeal at the beginning of the hearing. The Appellant on the other hand chose to proceed with his appeal, but it is clear that the aforementioned decision of the Supreme Court is equally dispositive of his appeal.
[3] In particular, it can no longer be argued that the applicable limitation period for the collection of taxes and related interests and penalties begins to run when income is earned. As was found by the Motions Judge and confirmed by the Supreme Court in Markevich (paragraphs 27 and 28), that period begins to run as of the time when a tax debt comes into existence and the delay prescribed by section 225.1 of the Income Tax Act (ITA) expires (i.e. 90 days after the mailing of the notice of assessment).
[4] The argument that the registration of a certificate with the Federal Court in accordance with subsection 223(3) of the ITA does not operate to renew the limitation period is equally no longer open to the Appellant. In Markevich the Supreme Court after referring to Ross v. Canada, 2002 D.T.C. 6885 (T.D.) (affirmed 2002 D.T.C. 7462) expressly refers to the registration of this certificate as a means of renewing the limitation period (Markevich, paragraph 18).
[5] It is therefore clear, in light of Markevich that the Appellant's appeal must suffer the same fate as the cross-appeal. However, it became apparent during the course of the hearing that there are issues arising from the reasons of the Motions Judge which could usefully be clarified.
[6] The Motions Judge noted in his reasons that the indebtedness in issue before him arose from assessments and reassessments which he summarized in the following table (reasons, paragraph 2).
|
Taxation year |
Assessment/reassessment |
Date |
|
1979 |
Assessment |
July 14, 1980 |
|
|
Reassessment |
April 16, 1984 |
|
1980 |
Assessment |
August 4, 1981 |
|
|
Reassessment |
April 16, 1984 |
|
1981 |
Assessment |
August 10, 1982 |
|
|
Reassessment |
April 16, 1984 |
|
1982 |
Assessment |
September 16, 1983 |
|
1983 |
Assessment |
June 25, 1984 |
|
1984 |
Assessment |
July 22, 1985 |
|
|
Reassessment |
January 15, 1988 |
|
1997 |
Assessment |
June 4, 1998 |
[7] The conclusion which he reached is stated at paragraph 13 of his reasons in the form of a declaration:
...because they are statute barred, the Minister shall not enforce collection of any amounts for Taxes, Canada Pension Plan, interest or penalties pertaining solely to the Minister's July 14, 1980, and August 4, 1981, assessments of the applicant's 1979 and 1980 taxation years. In all other respects, the application for judicial review should be dismissed.
[8] It follows from this declaration that to the extent that the Minister's certificate dated January 20, 1988 (Appeal Book p. 73) reflects amounts relating to the 1979 and 1980 taxation years, they are statute barred unless they are additional income taxes or Canada Pension Plan contributions and related interest and penalties arising from the April 16, 1984 reassessments issued in respect to the Appellant's 1979 and 1980 taxation years.
[9] As well, it is useful to state that the certificate only operates to renew the limitation period with respect to the amounts reflected therein that were not statute barred as of the date of the registration of the certificate. Amounts which were statute barred as of that date, if any, are excluded.
[10] It became apparent during the course of the hearing that the Appellant had yet to receive a revised statement of account giving effect to the decision of the Motions Judge. Needless to say, the Appellant is entitled to a detailed statement of account demonstrating that the Motion Judge's decision, insofar as it is favourable to him, has been complied with.
[11] The appeal and the cross-appeal will both be dismissed. There will be no order as to costs.
(Sgd.) "Marc Noël"
J.A.
"I agree.
Robert Décary J.A."
"I agree.
Karen R. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-469-02
STYLE OF CAUSE: Norman John Raymond MacKinnon v. Her Majesty
The Queen
PLACE OF HEARING: Vancouver
DATE OF HEARING: March 24, 2003
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: DÉCARY, SHARLOW JJ.A.
DATED: March 25, 2003
APPEARANCES:
Mr. Norman MacKinnon FOR THE APPELLANT
Mr. David Jacyk FOR THE RESPONDENT
Mr. Carl Januszczak
SOLICITORS OF RECORD:
Mr. Norman MacKinnon FOR THE APPELLANT
(appearing on his own behalf)
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada