Sobier
J.T.C.C.:—The
taxpayer
is
appealing
the
assessment
by
the
Minister
of
National
Revenue
(the
"Minister")
for
her
1988
taxation
year.
The
appeal
concerns
late
filing
penalties
and
arrears
interest.
The
background
facts
to
the
appeal
are
as
follows.
Facts
The
filing
deadline
for
the
1988
taxation
year
was
April
30,
1989.
Apparently
the
taxpayer
had
not
received
her
1987
assessment
prior
to
April
30,
1989
and
therefore
maintains
that
she
was
not
in
a
position
to
file
her
returns
for
the
1988
taxation
year
at
that
time.
The
taxpayer
did
not
receive
her
1987
assessment
until
June
1989.
She
objected
to
this
assessment
and
the
matter
was
finally
resolved
by
way
of
a
reassessment
in
August
1991.
On
or
about
March
1991,
the
taxpayer
was
asked
to
file
her
1988
return.
She
filed
her
return
on
December
20,
1991.
Shortly
thereafter,
she
received
a
notice
of
assessment
wherein
she
was
assessed
a
late
filing
penalty
of
$4,049.65
and
arrears
interest
of
$5,833.73.
These
figures
were
based
upon
the
$5,067.21
she
owed
in
taxes
for
the
1988
taxation
year.
Shortly
after
receiving
the
notice
of
assessment,
the
taxpayer
sent
a
letter
dated
February
21,
1992
to
Revenue
Canada
at
32
Church
Street,
St.
Catharines,
Ontario,
setting
out
the
above-noted
amounts
and
objecting
to
the
imposition
of
the
penalties.
The
following
is
an
excerpt
from
the
February
21,
1992
letter:
Needless
to
say,
I
received
the
shock
of
my
life
when
1
received
my
1988
“notice
of
assessment”
in
the
mail,
whereby,
they
assessed
me
a
late
filing
penalty
of
$4,049.65.
Furthermore,
they
assessed
instalment
interest
of
$309.01
and
arrears
interest
of
$5,833.73,
which
is
humanly
impossible,
considering
the
fact
that
the
incompleted
return
for
1988
had
me
owing
$5,067.21,
making
the
previously-mentioned
amount
over
100
per
cent
for
a
period
of
2
A
years.
She
filed
a
notice
of
appeal
to
the
Tax
Court
of
Canada
on
February
17,
1994.
At
the
hearing
in
Toronto,
the
counsel
for
the
respondent
brought
an
application
to
dismiss
the
appeal
on
the
ground
that
the
Court
did
not
have
the
jurisdiction
to
hear
the
matter
since
the
taxpayer
had
failed
to
file
a
notice
of
objection.
The
taxpayer
responded
by
contending
that
her
letter
dated
February
21,
1992
was
in
fact
a
notice
of
objection.
Issue
The
sole
issue
is
whether
the
letter
dated
February
21,
1992
constitutes
a
notice
of
objection.
Analysis
The
legislative
provision
applicable
to
the
case
at
bar
is
section
165
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act").
The
relevant
portion
of
section
165
reads
as
follows:
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,
[Emphasis
added.]
It
is
important
to
note
that
this
section
was
significantly
amended
with
respect
to
objections
filed
after
December
17,
1991.
For
objections
filed
prior
to
this
date,
the
provision
had
read
as
follows:
A
taxpayer
who
objects
to
an
assessment
under
this
Part
may,
within
90
days
from
the
day
of
mailing
of
the
notice
of
assessment,
serve
on
the
Minister
a
notice
of
objection
in
duplicate
in
prescribed
form
setting
out
the
reasons
for
the
objection
and
all
relevant
facts.
[Emphasis
added.]
The
amendment
to
the
provision
is
significant.
For
notices
of
objection
filed
after
December
17,
1991,
a
prescribed
form
need
not
be
used.
This
c
ange
came
about
as
a
result
of
the
“fairness
package”
announced
by
the
Minister
of
Finance
in
the
spring
of
1991.
Part
of
the
purpose
of
the
package
was
to
ease
some
of
the
procedural
requirements
of
the
Act.
This
fact
is
evident
from
the
wording
of
the
release
itself:
The
package
also
includes
proposals
to
make
the
appeals
process
simpler
and
more
streamlined.
Taxpayers
will
be
able
to
file
a
notice
of
objection
simply
by
writing
to
the
Chief
of
Appeals
at
their
local
district
office
or
taxation
centre.
The
amendments
will
eliminate
the
formalities
associated
with
the
filing
of
an
objection.
.
..
The
amendments
will
allow
all
taxpayers
to
initiate
the
appeal
process
simply
by
setting
out
the
facts
and
reasons
for
the
objection
in
a
letter
to
the
Chief
of
Appeals
in
their
local
district
office
or
taxation
centre.
Taxpayers
will
continue
to
have
the
option
of
using
a
form
provided
by
the
Department.
It
seems
fairly
clear
that
the
legislative
intent
behind
the
amendments
was
to
remove
some
of
the
procedural
barriers
to
the
appeal
process.
The
jurisprudence
dealing
with
the
old
provisions
of
section
165
of
the
Act
places
great
emphasis
on
the
use
of
a
form,
and
failure
to
use
the
proper
form
for
a
notice
of
objection
proved
fatal
in
certain
instances
to
establishing
the
jurisdiction
of
the
Court
to
hear
the
appeal.
(See
James
v.
M.N.R.,
92-1037
(August
18,
1994),
Sobier
J.T.C.C.
(unreported);
and
Weinkauf
v.
Canada,
[1985]
2
C.T.C.
354,
D.T.C.
5570
(F.C.T.D.)
(aff'd
F.C.A.
on
May
25,
1987,
[1987]
F.C.J.
No.
471)
(unreported).)
The
amendment
has
eliminated
the
need
to
use
the
prescribed
form
and
therefore
I
must
canvass
to
see
if
the
remaining
provisions
of
section
165
have
been
complied
with.
Counsel
for
the
respondent
places
great
emphasis
on
the
fact
that
the
letter
was
not
addressed
to
the
Chief
of
Appeals,
as
required
by
subsection
165(2)
of
the
Act
but
only
addressed
to
Revenue
Canada
to
the
attention
of
a
member
of
the
Public
Affairs
Department.
Though
it
is
not
so
addressed,
the
Appellant
was
not
attempting
to
confuse
or
mislead
anyone.
Section
32
of
the
Interpretation
Act
reads
as
follows:
Where
a
form
is
prescribed,
deviations
from
that
form,
not
affecting
the
substance
or
calculated
to
mislead,
do
not
invalidate
the
form
used.
However,
in
the
present
case,
there
is
no
prescribed
form
but
subsection
165(2)
does
prescribe
to
whom
the
notice
of
objection
is
to
be
addressed.
In
Acton
v.
M.N.R.,
93-2739,
Bowman
J.T.C.C.
(unreported),
the
taxpayer
attempted
to
make
a
request
without
using
the
prescribed
form
but
made
the
request
in
a
letter.
Judge
Bowman
found
the
letter
adequate
compliance
with
the
Act,
citing
section
32
of
the
Interpretation
Act
in
support
of
his
position.
There
is
no
doubt
that
Revenue
Canada
received
the
letter,
though
it
was
not
dealt
with
as
a
notice
of
objection.
However,
from
the
plain
reading
of
the
said
portions
of
the
letter,
it
appears
that
the
appellant
was
strenuously
objecting
and
disputing
the
assessment
of
penalties
and
interest
and
therefore
the
letter
can
be
taken
as
a
notice
of
objection.
It
would
not
be
in
the
best
interest
of
justice
to
put
the
narrow
interpretation
on
the
provisions
of
subsection
165(2),
as
suggested
by
counsel
for
the
respondent,
and
thus
deny
the
appellant
her
right
to
a
hearing
having
in
mind
the
thrust
of
the
fairness
package.
For
these
reasons,
the
application
is
dismissed.
Application
dismissed.
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