PETER KOSTIUK, Appellant, v. HER MAJESTY THE QUEEN,, 2010 TCC 630

Docket: 2010-628(IT)I BETWEEN: PETER KOSTIUK, Appellant, and HER MAJESTY THE QUEEN, Respondent . ____________________________________________________________________ Respondent’s Motion heard on November 29, 2010, at Saskatoon, Saskatchewan Before: The Honourable Justice G. A. Sheridan Appearances : Counsel for the Appellant: D.

Heather Funk Counsel for the Respondent: Bryn Frape ____________________________________________________________________ ORDER Upon the Appellant having filed a Notice of Appeal in respect of a Goods and Services Tax Credit Notice issued by the Minister of National Revenue advising that he was entitled to a Goods and Services Tax Credit in the 2006 year; And the Respondent having brought a motion for an order dismissing the Appellant’s Notice of Appeal on the basis that there can be no appeal from a ‘nil’ assessment; And having read the materials filed including the Affidavit of Sandy Slight and the Affidavit of Peter Kostiuk, and having heard the submissions of counsel; The Respondent’s motion is granted, without costs, and the appeal of the 2006 taxation year is dismissed in accordance with the attached Reasons for Order.

Signed at Ottawa , Canada , this 6 th day of December, 2010.

“G. A. Sheridan” Sheridan J. Citation: 2010TCC630 Date: 20101206 Docket: 2010-628(IT)I BETWEEN: PETER KOSTIUK, Appellant, and HER MAJESTY THE QUEEN, Respondent. REASONS FOR ORDER Sheridan, J. [ 1 ] The Appellant, Peter Kostiuk, is a 94-year-old gentleman. By Goods and Services Tax Credit Notice issued by the Minister of National Revenue dated September 4, 2009 (the “GST Credit Notice”) he was advised that he was entitled to a Goods and Services Tax Credit in the 2006 year of $90.50 for the specified months of July 2007, October 2007, January 2008 and April 2008. The basis for the Minister’s redetermination of Mr.

Kostiuk’s entitlement to the GST Credit was that he was “separated” and had a family net income of $24,124. [ 2 ] Prior to the GST Credit Notice under appeal, the Minister had issued three other GST credit notices for the same period: one dated September 7, 2007 advising Mr.

Kostiuk that he was not entitled to a GST Credit because his “spouse” had applied and there could be only one application per family; another dated November 30, 2007 advising that he was entitled to a GST Credit because he was “separated” and the family income level was within the amount allowed; and a third on November 28, 2008 advising, again, that he was not entitled to a GST Credit because his “spouse” had applied and there could be only one application per family. [ 3 ] It was against this background that on October 1, 2009 Mr.

Kostiuk objected to the Minister’s redetermination of September 4, 2009 on the basis that he was “married”, not “separated” as had been determined by the Minister. For reasons not known to this Court, the Minister maintained his position that Mr. Kostiuk was “separated” and confirmed the redetermination in respect of the GST Credit Notice. [ 4 ] It is from that confirmation that Mr. Kostiuk seeks to appeal.

He does not dispute that n o tax was assessed under the GST Credit Notice; what he takes issue with is the department’s determination of his marital status as “separated” when, in fact, he says he is and was at all relevant times “married”. Mr. Kostiuk’s concern is that should he, in future, file his returns as “married”, he runs the risk

of being constantly reassessed or worse, assessed penalties for having filed a false return. His purpose in appealing is to avoid suchdifficulties by asking this Court to make a final determination of his marital status. [5] The Respondent’s position is that no tax having been assessed under the GST Credit Notice, it is a ‘nil’ assessment andaccordingly, no appeal lies from it. [6] While the legislation itself makes no reference to that term, it has long been defined in the jurisprudence to identify anassessment which cannot be appealed: where no tax has been assessed, there is no “assessment” as that term is used in the legislation andhence, nothing to appeal. The rationale for this

interpretation was explained by Noël, J.A. in the Federal Court of Appeal decision, Interior Savings Credit Union v. Her Majesty the Queen[1]: 17 … There are two reasons why a so-called nil assessment cannot be appealed. First, an appeal must be directed against anassessment and an assessment which assesses no tax is not an assessment (see Okalta Oils Limited v. MNR, (SCC), 55D.T.C. 1176 (SCC) at p. 1178: “Under these provisions, there is no assessment if there was not (sic) tax claimed”).

Second, there is noright of appeal from a nil assessment since: “Any other objection but one related to an amount claimed [as taxes] was lacking the objectgiving rise to the right of appeal ...” (Okalta Oils, supra, at p. 1178).[2] [7] As Mr. Kostiuk admits that no tax was payable under the GST Credit Notice, this Court is without authority to entertain anappeal from it. An additional obstacle for Mr.

Kostiuk is that what he is effectively seeking in his appeal is a declaration of his maritalstatus, a remedy which, in any event, is beyond the power of this Court to grant. [8] For the reasons set out above, the Respondent’s motion is granted, without costs, and the appeal is dismissed. Signed at Ottawa, Canada, this 6th day of December, 2010. “G. A. Sheridan” Sheridan J. CITATION: 2010TCC630 COURT FILE NO.: 2010-628(IT)I STYLE OF CAUSE: PETER KOSTIUK AND HER MAJESTY THE QUEEN PLACE OF HEARING: Saskatoon, Saskatchewan DATE OF HEARING: November 29, 2010 REASONS FOR ORDER BY: The Honourable Justice G. A. Sheridan

DATE OF ORDER: December 6, 2010 APPEARANCES: Counsel for the Appellant: D. Heather Funk Counsel for the Respondent: Bryn Frape COUNSEL OF RECORD: For the Appellant: Name: D. Heather Funk Firm: Funk’s Law Office Prof. Corp. Saskatoon , Saskatchewan For the Respondent: Myles J. Kirvan Deputy Attorney General of Canada Ottawa, Canada