Date: 20021212
Dockets: 2000-2597-IT-G,
2000-2598-IT-G
BETWEEN:
WILLIAM G. GREEN,
JENNY GREEN,
Applicants,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Little, J.
FACTS
[1] This is an application for a determination of a question of law pursuant to Rule 58(1)(a) of the Tax Court of Canada Rules (General Procedure).
[2] The Applicants request that the Court determine the question of law in favour of the Applicants that paragraph 245(3)(b) of the Income Tax Act (the "Act") cannot apply their 1995 taxation year and directing that it is not an issue to be determined in these appeals.
[3] In their Notice of Motion the Applicants ask, in the alternative, that the Court strike out paragraphs 8(d) and 11(3) and 11(5) of the Minister's Reply as being improper and that the Respondent be enjoined from relying upon the new basis that there is an avoidance transaction within the meaning of paragraph 245(3)(b) of the Act since to do so would indirectly permit the Respondent to bypass the limitation period of subsection 152(4) of the Act.
[4] In the further alternative the Applicants ask in their Notice of Motion for the Court to confirm that it has no jurisdiction to grant any relief to the Respondent upon the basis that there is an avoidance transaction within the meaning of paragraph 245(3)(b) (series of transactions) since to do so would indirectly permit the Respondent to bypass the limitation period of subsection 152(4) of the Act.
ISSUE:
[5] Should the Court issue a ruling under Rule 58(1)(a) of the Tax Court of Canada Rules?
ANALYSIS
[6] Rule 58(1)(a) of the Tax Court of Canada Rules (General Procedure) calls for the determination of a question at law. The jurisprudence stated that the question must be a "pure question of law" i.e. there must be no dispute on the relevant and material facts. In this situation since the parties have not agreed upon all of the relevant facts it is not appropriate to issue a ruling under Rule 58[1].
[7] The applications are dismissed.
Signed at Vancouver, British Columbia, this 12th day of December 2002.
|
"L.M. Little" |
J.T.C.C.
COURT FILE NO.: 2000-2597(IT)G
STYLE OF CAUSE: William G. Green and
Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 16, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: December , 2002
APPEARANCES:
Counsel for the Applicant: Neil W. Nichols
Counsel for the Respondent: J.E. (Ted) Fulcher
COUNSEL OF RECORD:
For the Applicant:
Name: Neil W. Nichols
Firm: Nichols & Company
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, CanadaCOURT FILE NO.: 2000-2598(IT)G
STYLE OF CAUSE: Jenny Green and
Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: October 16, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: December , 2002
APPEARANCES:
Counsel for the Applicant: Neil W. Nichols
Counsel for the Respondent: J.E. (Ted) Fulcher
COUNSEL OF RECORD:
For the Applicant:
Name: Neil W. Nichols
Firm: Nichols & Company
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2000-2597(IT)G
BETWEEN:
WILLIAM G. GREEN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on common evidence with the application of Jenny Green (2000-2598(IT)G) on October 16, 2002, at Edmonton, Alberta, by
the Honourable Judge L.M. Little
Appearances
Counsel for the Applicant: Neil W. Nichols
Counsel for the Respondent: J.E. (Ted) Fulcher
ORDER
The application made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Order.
Signed at Vancouver, British Columbia, this 12th day of December 2002.
|
"L.M. Little" |
J.T.C.C.
2000-2598(IT)G
BETWEEN:
JENNY GREEN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on common evidence with the application of William G. Green (2000-2597(IT)G) on October 16, 2002, at Edmonton, Alberta, by
the Honourable Judge L.M. Little
Appearances
Counsel for the Applicant: Neil W. Nichols
Counsel for the Respondent: J.E. (Ted) Fulcher
ORDER
The application made under the Income Tax Act for the 1995 taxation year is dismissed in accordance with the attached Reasons for Order.
Signed at Vancouver, British Columbia, this 12th day of December 2002.
|
"L.M. Little" |
J.T.C.C.