Burroughs v. The Queen, 82 DTC 6340, [1982] CTC 414 (FCTD)

Mahoney J:—This is an application under Rule 474 for a preliminary determination of a question of law: whether, in the circumstances, the reassessment of the plaintiff’s 1976 income tax return was made within the time prescribed by subsection 152(4) of the Income Tax Act.

By definition, “assessment” includes reassessment and subsection 152(2) requires that the Minister “send a notice of assessment to the person by whom the return was filed”. It is well established that “an assessment is not made until the Minister has completed his statutory duties as an assessor by giving the prescribed notice”.* [1] There is no question here of any waiver, misrepresentation or fraud on the plaintiff’s part. The reassessment was required, by subsection 152(4), to be made within four years of July 29, 1977.

There was a postal strike in Canada between June 30 and August 10, 1981. The notice of reassessment, dated July 24, 1981, was mailed at the United States Post Office in Pembina, North Dakota, addressed to the plaintiff at his address in Bartlesville, Oklahoma, on July 29, 1981, He received it August 3.

The law requires that the notice of reassessment be sent, not that it be received, within the prescribed time. It further requires that it be sent, not that it be mailed. Accordingly, I find immaterial the provisions of the Post Office Act* relied on by the plaintiff in support of the proposition that the mailing here was not, in law, a mailing.

The mailing of a notice of reassessment at a United States Post Office, properly addressed to an addressee in the United States, does, in my view, meet the requirement of the Act that the notice be sent to that addressee. Such mailing, on July 29, 1981, was within four years of July 29, 1977. The reassessment was made in time.

ORDER

IT IS ORDERED AND DECLARED THAT the reassessment of the plaintiff’s 1976 income tax return, evidenced by notice of reassessment no 935749, was made within the time prescribed therefor by subsection 152(4) of the Income Tax Act. Costs in the cause.