https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/344822/index.do
Segura Mosquera v. Canada (September 20, 2018 – 2018 FCA 170, Near, de Montigny, Woods (Author) JJ.A.).
Précis: Ms. Mosquera received several Nil assessments from CRA in respect of her 2010 taxation year. She appealed to the Tax Court and Justice Owen dismissed her appeal on the basis that there is no jurisdiction to appeal a Nil assessment. Ms. Mosquera appealed to the Federal Court of Appeal which also dismissed her appeal. Although the Crown sought costs the Court of Appeal ordered that the parties each bear their own costs.
Decision: Ms. Mosquera unfortunately ran up against long established precedent:
[5] The legal principle that the Tax Court applied in quashing the appeal from a nil assessment is well established. In an earlier decision of this Court, the principle was described as follows: “… unless the taxpayer challenges the taxes interest or penalties assessed for the year, there is nothing to appeal and indeed no relief which the Tax Court can provide. …” (Canada v. Interior Savings Credit Union, 2007 FCA 151 at para. 15, 2007 D.T.C. 5342).
[6] This principle applies here, and it applies even if, as the appellant suggests, an amount is payable under provincial law for the same year. Accordingly, there was no relief that the Tax Court could provide in the appellant’s particular circumstances.
[7] The appellant suggests that the appeal should not have been quashed because there may actually have been federal tax owing. Even if this were the case, this does not assist the appellant because an appeal to the Tax Court cannot result in an increase of tax (Petro-Canada v. Canada, 2004 FCA 158 at para. 68, 319 N.R. 261).
[8] The appellant also submits that the Tax Court breached principles of natural justice and procedural fairness by not allowing her to present evidence so that she could receive assistance on the substantive issues in the appeal. I have reviewed the transcript of the Tax Court hearing and see no basis for this complaint. The decision of the Court was based on a preliminary motion by the Crown and the appellant did speak to the Court concerning this issue. Justice Owen properly advised the appellant that it was not the role of the Court to provide the appellant with legal advice on other issues.
Thus the Court of Appeal dismissed the appeal. Although the Crown sought costs the Court of Appeal ordered that the parties each bear their own costs.