| Citation: |
Morris v. M.N.R., 2009 FCA 373, [2010] 1 F.C.R. D-2 |
A-219-09 |
Income Tax
Non-Residents
Appeal from Federal Court judgment (2009 FC 434) requiring Minister of National Revenue to provide RCI Trust with written decision as to whether certain property of RCI Trust “treaty exempt property” based on Court’s conclusion RCI Trust resident of Barbados—RCI Trust disposing of certain shares of taxable Canadian corporation, resulting in capital gain—Applying under Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 116 for certificate relieving purchaser of shares from obligation under Act, s. 116(5) to withhold part of proceeds of disposition, remit withheld amount on behalf of RCI Trust to Receiver General—Act, s. 116(2) requiring RCI Trust either pay Minister specified percentage of capital gain as or on account of tax payable by RCI Trust under Part I of Act, or provide security acceptable to Minister—RCI doing neither of these things—Nothing in Act relieving person from obligation to make payment, provide security when applying for s. 116 certificate—However, Minister adopting policy of providing discretionary relief where non-resident claiming treaty exemption, providing specified documentation—Person seeking discretionary relief must satisfy Minister as to certain elements of claimed exemption—While Federal Court having jurisdiction to entertain judicial review of refusal by Minister to issue s. 116 certificate, Federal Court should not exercise that jurisdiction in situation where person seeking s. 116 certificate may have recourse to Tax Court of Canada by filing income tax return—Appeal allowed.
Morris v. M.N.R. (A-219-09, 2009 FCA 373, Sharlow J.A., judgment dated December 17, 2009, 7 pp.)