Claimant not “particular individual” under s. 254 of Excise Tax Act, can’t claim housing rebate

Tax - Goods and services tax - Rebates

Claimant real estate agent signed agreement to purchase new condominium unit from developer as co-purchaser with claimant’s nephew. Claimant had trust declaration prepared to show that she and her husband held title in trust for nephew so he could qualify for mortgage. Minister of National Revenue denied claimant’s GST/HST new housing rebate application on basis that claimant did not meet requirement of acquiring property for use as primary place of residence of “particular individual” or relation of particular individual. Claimant appealed on ground that she acted on behalf of nephew as his agent or trustee in acquiring new home. Tax Court judge allowed appeal. Judge held that, while claimant was not “particular individual”, nephew, as principal of agency relationship, was “particular individual” and satisfied occupancy requirements. Minister appealed. Appeal allowed. It was error of law to find that claimant who was not “particular individual” under s. 254 of Excise Tax Act (ETA) was eligible to claim new housing rebate. Claimant did not intend to, and did not actually, occupy home as her place of residence, so she was not “particular individual” for purpose of s. 254(2) of ETA. Nephew did intend to reside in home so it was critical question whether he was relation of claimant. As result of ss. 254(1) and 126(2) of ETA, and ss. 251(2) and 251(6) of Income Tax Act (ITA), nephew was not related to aunt or uncle, so nephew was not relation of claimant. Claimant was not entitled to claim new housing rebate and her appeal was dismissed.

Canada v. Ngai (2019), 2019 CarswellNat 2742, 2019 FCA 181, Johanne Gauthier J.A., Wyman W. Webb J.A., and Marianne Rivoalen J.A. (F.C.A.); reversed (2017), 2017 CarswellNat 2216, 2017 TCC 79, B. Russell J. (T.C.C. [Informal Procedure]).

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