Docket: 2013-1381(IT)APP
BETWEEN:
LISE A. BRANDO,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on June 28, 2013 at Ottawa, Ontario
Before: The Honourable
Justice Valerie Miller
Appearances:
|
Agent for the Applicant:
|
Robert
Brando
|
|
Counsel for the Respondent:
|
Christopher Kitchen
|
____________________________________________________________________
ORDER
The application for an
extension of time to file a Notice of Objection for the 2004 and 2005 taxation
years is dismissed.
Signed at Ottawa, Canada, this 9th day of July 2013.
“V.A. Miller”
Citation : 2013TCC223
Date: 20130709
Docket: 2013-1381(IT)APP
BETWEEN:
LISE A. BRANDO,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
V.A. Miller J.
[1]
This is an application
for extension of time to file a notice of objection for the 2004 and 2005
taxation years.
[2]
The Applicant was
represented at the hearing by her spouse.
[3]
The Minister of
National Revenue (the “Minister”) has opposed this application on the basis
that it was filed with the Court beyond the time period allowed by subsection
166.2(1) of the Income Tax Act (“ITA”). That provision reads:
166.2(1)
Extension of time [to object] by Tax Court -- A taxpayer
who has made an application under subsection 166.1(1) may apply to the Tax
Court of Canada to have the application granted after either
(a)
the Minister has refused the application, or
(b) 90 days have elapsed after service of the application under
subsection 166.1(1) and the Minister has not notified the taxpayer of the Minister's
decision,
but
no application under this section may be made after the expiration of 90 days
after the day on which notification of the decision was mailed to the taxpayer.
[4]
In particular, the
Minister stated that this application was filed with the Court more than 90
days after his decision was mailed to the Applicant. In support of its
position, the Minister relied on the affidavit of Lora Reynolds, Litigation
Officer with the Canada Revenue Agency (“CRA”).
2004
[5]
The Applicant’s 2004
taxation year was assessed by notice dated May 5, 2005 and she did not file a
notice of objection with the Minister until September 4, 2012. The Minister
advised the Applicant by letter dated October 12, 2012 that the objection was
late filed. He also informed the Applicant that an extension of time for filing
the objection could not be granted because the application was made more than
one year after the expiration of the time otherwise limited for filing the
objection. The deadline for filing the notice of objection was April 30, 2006
and the one year after that date was April 30, 2007.
[6]
According to subsection
166.2(1), the Applicant had 90 days from October 12, 2012 to file her
application with this Court. Her 90 day deadline expired on January 10, 2013
and she did not file her application with the Court until March 20, 2013.
[7]
I do not have the
jurisdiction to grant the application because it was filed past the limitation
periods given in the ITA. The application for extension of time for the
2004 taxation year is dismissed.
2005
[8]
The Applicant’s 2005
taxation year was assessed by notice dated April 3, 2006 and it was reassessed
by notice dated November 30, 2009. The Applicant filed a notice of objection
with the Minister for her 2005 taxation year on September 14, 2012. The
Minister informed the Applicant that the objection was late filed and because
the objection was filed beyond the one year and 90 days otherwise limited by
the ITA, he could not grant an extension of time to file the notice of
objection.
[9]
It was the Applicant’s
position that she did not receive the notice of reassessment for her 2005
taxation year. Mr. Brando stated that he and his spouse moved in September
2008. At that time, he operated a sole proprietorship from his home and he
telephoned the CRA to give them his change of address for the purposes of his
GST remittances. He said that he did not know that the income tax and GST
sections of CRA were separate. He thought that once he had given CRA his change
of address, they would have both his and the Applicant’s change of address for
purposes of income tax and GST. He stated that the CRA ought to have looked at
his last income tax return to see that he was married to the Applicant.
[10]
Mr. Brando argued as
well that the notice of reassessment was issued beyond the 3 years permitted in
paragraph 152(3.1)(b) of the ITA and it is therefore invalid. It
was his position that the reassessment was made beyond the time allowed and
therefore no other sections of the ITA are applicable. He stated that
the section of the ITA which required him to file a notice of objection
with the Minister is not applicable because the notice of reassessment is
invalid.
[11]
I have concluded from
Mr. Brando’s evidence that when he telephoned the CRA in 2008, he gave only his
change of address. He was not listed as the Applicant’s representative at the
time and he could not have given her change of address. Aside from the fact
that CRA does not have a duty to ascertain if someone has changed their
address; CRA cannot change a taxpayer’s address because her spouse has changed
his address. It was the Applicant’s responsibility to keep the CRA informed of
her mailing address: Denelzen v R, [1998] FCJ No 1450 (FCA).
[12]
This court does not
have jurisdiction to grant the application for extension of time to file a
notice of objection as it was filed beyond the 90 days allowed by subsection
166.2(1) of the ITA.
[13]
Before this court can
review the merits of a reassessment or whether the reassessment was made beyond
the time allowed by the ITA, the Applicant must have filed a notice of
objection to the reassessment and then have filed a notice of appeal in
accordance with section 169 of the ITA. In the circumstances of this
application, the Applicant has missed the time to file a notice of objection
for her 2005 taxation year. The application with respect to the 2005 taxation
year is also dismissed.
Signed at Ottawa, Canada, this 9th day of July 2013.
“V.A. Miller”
CITATION: 2013TCC223
COURT FILE NO.: 2013-1381(IT)APP
STYLE OF CAUSE: LISE A. BRANDO AND
THE
QUEEN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: June 28, 2013
REASONS FOR ORDER
BY: The Honourable Justice Valerie Miller
DATE OF ORDER: July 9, 2013
APPEARANCES:
|
Agent for the
Applicant:
|
Robert Brando
|
|
Counsel for the
Respondent:
|
Christopher Kitchen
|
COUNSEL OF RECORD:
For the Applicant:
Name:
Firm:
For the
Respondent: William F. Pentney
Deputy
Attorney General of Canada
Ottawa,
Canada
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