Tax Court of Canada Judgments

Citation: 2006TCC219

Date: 20060407

Docket: 2005-3566(IT)I

BETWEEN:

J. BUD ROACH,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

(Delivered orally from the bench

on March 16, 2006, in Toronto, Ontario

and subsequently edited as to form)

Paris, J.

[1]        This is a motion to quash the appeal filed for the Appellant's 2001 and 2002 taxation years. On the basis of the Appellant's indication that he is not opposing the motion and on the basis of the affidavit material filed, I am satisfied that the appeal to this Court from the Notices of Reassessment issued September 30, 2004, is invalid as there is no federal tax payable under the those reassessments. The case law is clear that where there is no federal tax payable the Court lacks jurisdiction to hear the appeal.

[2]      However, it appears that the Appellant wishes to challenge the amount of provincial tax that was reassessed. The process for appealing a reassessment which involves only provincial income tax can be confusing to a taxpayer. In this case, the Appellant has apparently been told that he has a right to appeal to this Court from the reassessment but upon doing so finds that the appeal cannot in fact be dealt with by this Court, and that he must go to another Court in order to exercise his right of appeal. It happens rather rarely that the taxpayer finds him or herself in this situation, and it is difficult for someone in Mr. Roach's position to understand the intricacies of the appeal process where an assessment involves an amount of provincial tax, but no federal tax.

[3]      I understand that it is the Appellant's intention to appeal the assessment under the Ontario Income Tax Act and to apply for an extension of time. Of course I have no jurisdiction with respect to that matter, but would simply state for the record that I believe Mr. Roach was unintentionally misled by the materials accompanying the Notice of Confirmation advising him he would be entitled to appeal to this Court.

[4]      It appears from the record that he did file the appeal as instructed, with those materials, within time and has been diligent in pursuing his appeal rights.

[5]      The motion to quash is granted.

          Signed at Ottawa, Canada, this 7th day of April, 2006.

"B. Paris"

CITATION:                                        2006TCC219

COURT FILE NO.:                             2005-3566(IT)I

STYLE OF CAUSE:                           J. Bud Roach and HMQ

PLACE OF HEARING:                      Toronto, Ontario

DATE OF HEARING:                        March 16, 2006

REASONS FOR JUDGEMENT BY: The Honourable Justice Brent Paris

DATE OF JUDGMENT:                     April 7, 2006

APPEARANCES:

Agent for the Appellant:	Michael Fox
Counsel for the Respondent:	Nimanthika Kaneira

COUNSEL OF RECORD:

       For the Appellant:

                   Name:                             

                   Firm:                               

                                                         

       For the Respondent:                     John H. Sims, Q.C.

                                                          Deputy Attorney General of Canada

                                                          Ottawa, Ontario