Date: 19980915
Docket: 96-3880-GST-I
BETWEEN:
475830 ALBERTA LTD.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Beaubier, J.T.C.C.
[1] This matter came on for hearing at Edmonton, Alberta on August 12, 1998. At that time, the Court raised the question as to whether it had any power to hear the appeal based upon the pleadings. In particular, a Notice of Appeal signed by Francis Mella of Mella Accounting stated that the Appellant is bankrupt; this was admitted by the Respondent.
[2] For this reason the matter was adjourned until a telephone conference on September 14, 1998 in order that the parties could bring before the Court a record respecting the alleged bankruptcy. The purported appeal is from a Notice of Decision confirming an assessment against the Appellant of GST.
[3] Based upon the material filed for the September 14th hearing, the chronology of the legal position of the Appellant is as follows:
November 24, 1993 The Appellant is declared bankrupt and a trustee is appointed by the Alberta Court of Queen's Bench.
November 30, 1993 The Notice of Decision is issued by the Minister of National Revenue.
January 10, 1994 The Minister files a Proof of Claim in the bankruptcy.
March 8, 1994 An Amendment of the Proof of Claim is filed.
May 1, 1995 The Appellant is struck off the Corporate Registry of Alberta.
May 17, 1995 The Trustee in Bankruptcy is discharged.
September 28, 1996 Francis Mella of Mella Accounting files this appeal on behalf of the Appellant after obtaining an extension of time to appeal.
[4] Two further matters must be noted:
(1) The Amended Proof of Claim appears to have been accepted as filed in the bankruptcy.
(2) The Appellant is not discharged from bankruptcy.
[5] There are two reasons for dismissing this appeal based upon the foregoing:
(1) Francis Mella has no right to bring an appeal for the Appellant. That remains the responsibility of the trustee. (See subsection 71(2) of the Bankruptcy and Insolvency Act and Alsask Farm & Ranch Supply Ltd. v. Texaco Canada Ltd. (1989) 74 C.B.R. 73
(2) The assessment and Notice of Decision were dealt with in the bankruptcy by virtue of the Proof of Claim and Amended Proof of Claim filed in the bankruptcy. They could have been disputed in the bankruptcy process.
[6] For these reasons, the appeal is dismissed.
Signed at Ottawa, Canada this 15th day of September 1998.
"D.W. Beaubier"
J.T.C.C.