Citation: 2013 TCC 405
Date: 20131213
Docket: 2013-1510(IT)APP
BETWEEN:
STEPHEN PERSAUD,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Woods J.
[1]
This matter concerns an
application by Stephen Persaud which requests the following relief:
Please use your good
office and assist me getting my 2007 objection to be on file.
[2]
Upon review of the
application, it appears that Mr. Persaud
is seeking confirmation that he had filed a valid notice of objection within
the time prescribed. The relevant excerpt from the application is reproduced
below.
I filed two
objections. In September 2010. One of the objection was for the year 2006 and
the other was for the year 2007. Both objections were sent to the Markham
Office On September 2010 revenue Canada stated that they only received 2006
objection but not the 2007 objection. I did not resend a new objection for 2007
because I had already objections for both years. Many calls were made to
Revenue Canada to explain that I had already send my2007 objection.
Preliminary matter
[3]
Although Mr. Persaud submits that
a notice of objection was filed on time, the Registry of the Court opened the
file as if Mr. Persaud was seeking an application to extend time to serve a
notice of objection. In its Reply, the Crown responded to an application to
extend time rather than replying to the assertions in Mr. Persaud’s application.
This is unfortunate.
[4]
The manner in which the file was opened by the Registry
seems odd, but the Court does not have jurisdiction to grant declaratory
relief, which appears to be the relief that Mr. Persaud seeks.
Background facts
[5]
By letter dated September 15,
2010, the Canada Revenue Agency (CRA) informed Mr. Persaud that they had
completed an audit of his claim for a charitable gift to the Global Learning
Gifting Initiative 2007. Mr. Persaud was informed that no amount would be allowed
as a charitable gift.
[6]
Mr. Persaud testified that on
receipt of this letter, he decided to file a similar notice of objection that
he had filed for the immediately preceding taxation year and which also
involved the disallowance of a charitable donation. The objection for the 2007
taxation year was dated September 30, 2010 and was sent by ordinary mail around
that time. A copy of the notice of objection was attached to Mr. Persaud’s
application to this Court.
[7]
Although the notice of objection
references a reassessment dated September 15, 2010, this is the date of the CRA
letter and not the date of the notice of reassessment. The notice of reassessment
was issued a few months later on January 24, 2011.
[8]
The CRA never acknowledged to Mr.
Persaud that it had received the notice of objection dated September 30, 2010. The
reason for this is not known, and as mentioned earlier the Reply did not
specifically address Mr. Persaud’s submission that a notice of objection had
been sent on September 30, 2010.
[9]
Subsequent to the issuance of the
reassessment and after the time period for objecting had expired, the CRA sent
many requests to Mr. Persaud to pay the amount outstanding. Mr. Persaud
testified that he called the CRA many times and advised them that a notice of objection
had already been filed. He stated that he left voice mails and that he never
received a response. Things came to a head when the CRA issued a garnishment in
2013, which eventually led to this application being filed.
Discussion
[10]
Based on the evidence
as a whole, I accept Mr. Persaud’s
testimony that he mailed a notice of objection to the CRA on or around
September 30, 2010. It is not known what happened to this document, because
receipt was never acknowledged by the CRA. I would conclude that it is more
likely than not that the document was received by the CRA. It may have been that
the CRA did not respond to the document because the reassessment had not yet
been issued.
[11]
Counsel for the Crown submits that
this document is not a notice of objection to the reassessment issued by notice
dated January 24, 2011 because the objection did not refer to this
reassessment.
[12]
In my view, this is too narrow an
interpretation of subsection 165(1) of the Income Tax Act, which is the
provision which permits the filing of a notice of objection.
[13]
Subsection 165(1) provides:
165.(1)
Objections to assessment - A taxpayer who objects to an assessment under
this Part may serve on the Minister a notice of objection, in writing, setting
out the reasons for the objection and all relevant facts,
(a) where the
assessment is in respect of the taxpayer for a taxation year and the taxpayer
is an individual (other than a trust) or a testamentary trust, on or before the
later of
(i) the day
that is one year after the taxpayer's filing-due date for the year, and
(ii) the day
that is 90 days after the day of sending of the notice of assessment; and
(b) in any other
case, on or before the day that is 90 days after the day of sending
of the notice of assessment.
[14]
The document sent by Mr. Persaud
refers to a reassessment dated September 15, 2010. This is the date of the
letter that precedes the reassessment and which informs Mr. Persaud that the
charitable gift is disallowed. It is clear that Mr. Persaud intends to
object with respect to this issue. A reasonable interpretation of the document is
that Mr. Persaud was objecting to the reassessment that implemented the
disallowance.
[15]
Where does that leave us? I would
conclude as follows:
1. The notice of objection dated September 30,
2010 is, in my view, a validly-served notice of objection to the reassessment that
was subsequently issued by notice dated January 24, 2011.
2. It is not possible for this Court to grant the
declaratory relief that Mr. Persaud seeks. Since this Court has no
authority to declare the notice of objection valid, I must dismiss Mr.
Persaud’s application.
3. Although Mr. Persaud does not seek an
application to extend time, I would comment that there is no basis to grant an
extension of time on the facts of this case.
[16]
In the result, an order will be
issued which dismisses Mr. Persaud’s application. However, I would hope that
the CRA will recognize the document mailed on September 30, 2010 as a notice of
objection to the reassessment issued by notice dated January 24, 2011.
Signed at Toronto, Ontario this 13th day of December
2013.
“J. M. Woods”
Email this Content