Docket: 2005-1777(IT)I
BETWEEN:
COLBERT LAI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on September 23, 2005, at Calgary, Alberta
Before: The Honourable
Justice Michael J. Bonner
Appearances:
|
Agent for the Appellant:
|
Kitty
Tang
|
|
Counsel for the
Respondent:
|
Galina M. Bining
|
____________________________________________________________________
ORDER
Upon application by the Respondent for an Order quashing the
appeal;
And upon reading the affidavit of Cheryl Ritchie, filed;
The application is granted and the appeal is
dismissed.
Signed at Toronto, Ontario, this 28th day of September
2005.
Michael J. Bonner
Citation: 2005TCC636
Date: 20050928
Docket: 2005-1777(IT)I
BETWEEN:
COLBERT LAI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Bonner, J.
[1] This is an
application by the Respondent for an Order quashing the appeal from an
assessment of income tax for the 2000 taxation year on the basis that the
Appellant did not object to the assessment within the time limits set out in
paragraph 165(1)(a) of the Income Tax Act (the “Act”).
[2] Section 169 of the Act
which confers the right to appeal from an assessment of income tax
commences with the words “Where a taxpayer has served notice of objection to an
assessment under section 165, the taxpayer may appeal…”.
[3] A taxpayer may be
considered to have served notice of objection as required by section 169 only
if he has served the notice within the time period set out in subsection 165(1)
of the Act, that is to say 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
mailing of the notice of assessment; and …
[4] The affidavit of Cheryl Ritchie establishes that the
assessment from which the Appellant appeals was mailed on December 8, 2003 to
his last known address as indicated in his return of income for the 2000 taxation
year.
[5] Mr. Lai’s Notice of Objection was not served until March
21, 2005.
[6] The Notice of Appeal pleads that the Notice of
Assessment was sent to the Appellant’s old address in December 2003. It seems
that Mr. Lai left Canada and became a non-resident in 2001 and that, although he
returned to Canada in 2003, he then commenced to live
at a new address. Doubtless that is why Mr. Lai’s Notice of Objection was
filed late. He did not receive the notice of assessment and was unaware of it.
[7] In Schafer v. R., [2000] F.C.J. No. 1480, it was
held in relation to analogous provisions of the Excise Tax Act that:
…Subsection 301(1.1) states that the limitation
period begins to run ninety days after the notice is “sent”. Therefore, the
only requirement is that the Minister demonstrate that the notice was sent.
There is no requirement that the notice be received in order to start the
limitation period running. The language of subsection 301(1.1) is clear and
unambiguous and must be applied regardless of its object and purpose.
[8] Schafer was followed in a later decision of that
Court, McLelland v. R., [2004] FCA 315. That decision arose under the
objection and appeal provision of the Income Tax Act. At paragraph 4
Sexton J.A. stated:
The Appellant took the position before
the Tax Court Judge that he had never received the Notice of Assessment.
However, it is sufficient if CCRA proves that the Notice of Assessment was
sent. It need not be proven that the Notice was received. Schafer v. R.,
2000 D.T.C. 6542 (Fed. C.A.).
[9] The Appellant did not seek an order extending the time
for objection under section 166.1 of the Act. An Order will therefore be
issued dismissing the appeal.
Signed at Toronto, Ontario, this 28th day of September 2005.
Michael J. Bonner
CITATION: 2005TCC636
COURT FILE NO.: 2005-1777(IT)I
STYLE OF CAUSE: Colbert Lai and Her Majesty the Queen
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 23, 2005
REASONS FOR ORDER BY: The
Honourable Justice Michael J. Bonner
DATE OF ORDER: September 28, 2005
APPEARANCES:
|
Agent for the
Appellant:
|
Kitty Tang
|
|
Counsel for the
Respondent:
|
Galina M. Bining
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa,
Ontario
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