Burnet v. M.N.R.
T-2261-96
Tremblay-Lamer J.
12/6/97
7 pp.
Application, pursuant to Income Tax Act, s. 152(1.1), for mandamus to compel respondent to issue notice of determination of loss for 1987 taxation year in amount not less than $260,460-In 1987, applicant and husband sold property in West Vancouver, B.C., incurring $520,920 loss-Applicant did not claim any loss when filed 1987 tax return-Neither objecting to tax assessment nor appealing assessment-Husband claimed entire loss as business loss in 1987 tax return-In 1991, MNR reassessed husband's 1987 taxation year and disallowed loss on basis personal-use loss-Husband appealed reassessment to Tax Court-In October 1992, applicant applied to MNR for notice of determination of non-capital loss for 1987 taxation year in amount equal to half loss on basis joint owner of property-Husband's reassessment for 1987 taxation year replaced by new reassessment dated October 1992-Husband amended original notice of appeal, claiming only half of loss on basis joint owner of property-MNR agreed to hold applicant's October 1992 application in abeyance pending TCC's decision on husband's appeal-In August 1994 letter, MNR agreed with applicant if husband successful in appealing half of loss, then that would be taken into account in determining applicant's non-capital loss for 1987 taxation year and respondent would issue notice of determination of loss accordingly-In May 1995, TCC determined husband entitled to business loss equal to half of loss incurred from sale of property-In October 1995, applicant applied for notice of determination of loss for 1987 taxation year equal to half of loss-In September 1996, MNR denied plaintiff's application-Application dismissed-For issuance of mandamus, must first be determined whether respondent owed public legal duty to applicant pursuant to Act, s. 152(1.1)-Only real issue whether respondent "ascertained" applicant's loss for 1987 taxation year different than what she reported in income tax return for year-Precondition in Act, s. 152(1.1) not satisfied and thus respondent owed no public legal duty to applicant-Applicant's loss never ascertained-Respondent's 1994 letter did not provide formula sufficient to ascertain applicant's loss-Letter did not make amount certain, and position contained therein also made conditional-Flows from case law amount cannot be said to have been ascertained when subject of some contingency-Minister ascertained applicant's loss for 1987 taxation year as nil as reported by applicant's tax return for 1987-August 1994 letter did not change that-Income Tax Act, S.C. 1970-71-72, c. 63, s. 152(1.1) (as enacted by S.C. 1976-77, c. 4, s. 6; 1977-78, c. 1, s. 76; 1984, c. 1, s. 84; 1985, c. 45, s. 86; 1986, c. 55, s. 59).