https://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/364291/index.do
Zdzieblowska v. The Queen (February 22, 2019 – 2019 TCC 40, D’Arcy J.).
Précis: The taxpayer claimed a New Housing Rebate which was denied because she did not occupy the home but rented it to a third party. She then applied for a Rental Property Rebate but the application was out of time. She claimed that the Rental Property Rebate should be granted under subsection 297(2.1) of the Excise Tax Act (ETA) which permits the Minister to grant the Rebate in respect of “an amount payable in respect of a rebate that was previously paid to the appellant in error, or whether the appellant is appealing an assessment under subsection 297(1) that merely denies an application for the relevant rebate” [Para. [3]]. The Court dismissed the appeal on the basis that subsection 297(2.1) did not apply since the taxpayer had not filed a notice of objection in respect of the New Housing Rebate. There was no order as to costs since this was an informal procedure appeal.
Decision: This case boiled down to the fact that the taxpayer had not complied with the technical rules in subsection 297(2.1) of the ETA and therefore the Court could not grant her relief:
[34] The Appellant has appealed the denial of her application for the Rental Property Rebate. This does not involve a situation where the Minister has paid an amount to a person in respect of a rebate and then determined that the person was not entitled to the rebate. Rather, the fact situation before the Court is that the Minister denied the rebate application before she paid any amount to the Appellant.
[35] As a result, no amount was paid to the Appellant in respect of the Rental Property Rebate and thus the Minister did not assess an amount payable by the person under Part IX of the Act. The Minister’s assessment is an assessment under subsection 297(1) denying the application; it does not result in an amount becoming payable by the Appellant under Part IX of the Act. Consequently, subsection 296(2.1) does not apply to the assessment denying the Rental Property Rebate.
[36] Subsection 296(2.1) could potentially have applied to the Minister’s assessment in respect of the New Housing Rebate. Since the Appellant was assessed, pursuant to subsection 297(2.1), an amount payable of $24,000 under section 264, the Minister should have considered subsection 296(2.1) when issuing the assessment in respect of the New Housing Rebate. In particular, the Minister should have reduced the amount being assessed in respect of the New Housing Rebate by the amount of the Rental Property Rebate if the conditions of paragraphs (a), (b) and (c) of subsection 296(2.1) were satisfied at the time of the assessment.
[37] Unfortunately, the Appellant did not file a notice of objection in respect of the New Housing Rebate. It is not before the Court.
[38] In summary, subsection 296(2.1) does not apply to the Minister’s assessment under subsection 297(1) denying the Appellant’s application for the Rental Property Rebate.
Thus the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.