Citation: 2013 TCC 364
Date: 20131121
Docket: 2012-1749(IT)G
BETWEEN:
GREGORY E. PYLATUKE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Favreau J.
[1]
The Respondent has
brought a motion to quash the appellant's 2006 income tax appeal as having been
instituted by filing his notice of appeal with the Court after the expiry of
the time allowed for filing an appeal pursuant to subsection 169(1) of the
Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended (the “Act”).
[2]
The Respondent alleged
that:
(a) no request for
extending the time for filing an appeal was made pursuant to subsection 167(1)
of the Act;
(b) the time within which an
application to extend the time for filing an appeal in this proceeding has
expired; and
(c) a condition precedent
to instituting a valid appeal has not been met.
[3]
The Appellant has
brought a motion for an extension of time within which the Appellant's appeal
may be instituted up to and including the date of filing of the notice of
appeal, pursuant to subsection 167(1) of the Act.
[4]
The Appellant alleged
that:
(a) the Minister of
National Revenue (the "Minister") did not notify the Appellant of a
reassessment or a decision on an objection in a timely fashion or at all;
(b) the Respondent filed a
reply in this proceeding which raised no issue of time or a requirement for an
extension of time for instituting an appeal;
(c) the Respondent in its
reply confirmed its response to a disclaimer of knowledge;
(d) the time for
commencement of the appeal should run no earlier than February 27, 2012;
(e) the time to apply for
an extension should not commence, in these circumstances, until June 11, 2013;
and
(f) the Appellant did not
receive the notice of confirmation of the reassessment and did appeal in a
timely fashion.
Chronology of events
[5]
Based on the
supplementary Respondent's submissions, the chronology of events in this matter
is as follows:
(a) the Appellant was
reassessed in respect of his 2006 taxation year on June 11, 2009;
(b) the Appellant filed an
objection which was dated September 9, 2009 and received by the Minister on
September 17, 2009;
(c) the objection was
filed late but deemed by the Minister to have been received on February 4,
2010;
(d) the Appellant was
subsequently reassessed a second time by notice of reassessment dated January
19, 2012;
(e) a letter explaining
the decision giving rise to the notice of reassessment of January 19, 2012 (the
"Reassessment") was sent to the Appellant personally and carbon-copied
to the Appellant's lawyer, on January 19, 2012;
(f) the notice of appeal was filed on
April 30, 2012;
(g) 90 days from January 19, 2012 is April
18, 2012;
(h) one year from April 18, 2012 is
April 18, 2013;
(i) no application to
extend the time to file the notice of appeal was made prior to April 18, 2013;
(j) the reply was filed on September
28, 2012.
Issues
[6]
The issues are as
follows:
(a) did the applicable
time limit for filing the notice of appeal expire prior to the date on which it
was filed?
(b) if yes, can the filing
of the notice of appeal substitute for the making of an application under
section 167 of the Act?
(c) what is the significance,
if any, of the reply having been filed by the Respondent before the time the
motion was brought?
The Law
[7]
Subsection 169(1) of
the Act provides for a time limit of 90 days from the day the notice is
sent to the taxpayer where the Minister has reassessed under section 165.
[8]
Section 169(1) reads as
follows:
Where a taxpayer has served notice of objection to an assessment
under section 165, the taxpayer may appeal to the Tax Court of Canada to have
the assessment vacated or varied after either
(a)
the Minister has confirmed the assessment or
reassessed, or
(b)
90 days have elapsed after service of the
notice of objection and the Minister has not notified the taxpayer that the
Minister has vacated or confirmed the assessment or reassessed,
. . .
[9]
No appeal under
subsection 169(1) may be instituted after the expiration of 90 days from the
day notice has been mailed to the taxpayer under section 165 that the Minister
has confirmed the assessment or reassessed. The time period within which an
appeal may be made to this Court is 90 days from the date the notice of
confirmation of the reassessment was mailed to the Appellant. Since the notice
of confirmation was mailed to the Appellant on January 19, 2012, this 90-day
period expired long before the notice of appeal was filed on April 30, 2012.
[10]
A taxpayer may make an
application to extend the time within which an appeal may be made to this
Court. Section 167 of the Act governs such applications. This section
provides that:
167.(1)
Where an appeal to the Tax
Court of Canada has not been instituted by a taxpayer under section
169 within the time
limited by that section for doing so, the taxpayer may make an
application to the Court for an order extending the time within which the
appeal may be instituted and the Court may make an order extending the time for
appealing and may impose such terms as it deems just.
(2)
An application made under
subsection (1) shall set out the
reasons why the appeal was not instituted within the time limited by section 169 for doing so.
(3)
An application made under
subsection (1) shall be made by
filing in the Registry of the Tax Court of Canada, in accordance with the
provisions of the Tax Court of Canada Act, three copies of the
application accompanied by three copies of the notice of appeal.
(4)
The Tax Court of Canada
shall send a copy of each application made under this section to the office of
the Deputy Attorney General of Canada.
(5)
No order shall be made under
this section unless
(a) the application
is made within one year after the expiration of the time limited by section 169 for appealing; and
(b) the taxpayer demonstrates that
(i)
within the time otherwise limited by section 169 for appealing the taxpayer
(A)
was unable to act or
to instruct another to act in the taxpayer's name, or
(B)
had a bona fide
intention to appeal,
(ii)
given the reasons set
out in the application and the circumstances of the case, it would be just and
equitable to grant the application,
(iii)
the application was
made as soon as circumstances permitted, and
(iv)
there are reasonable grounds for the appeal.
[11]
On the facts of this
case, the main issue is whether the Minister mailed the reassessment to the
Appellant on January 19, 2012? The Appellant maintains that neither him nor his
lawyer received the said reassessment.
[12]
Both the Appellant and
the Respondent filed sworn affidavits on this issue.
[13]
The Respondent filed an
affidavit of Mr. Young-Hamel, an appeals officer with the Canada Revenue
Agency, sworn on August 29, 2013. In his affidavit, Mr. Young-Hamel namely
stated that:
4. On January 19, 2012, the Appellant was sent a Notice of
Reassessment. A copy of this Notice of Reassessment is attached as Exhibit
"D" to the Affidavit of Shelley Eichorn, sworn January 29, 2013.
5. A T7W-C form dated January 19, 2012, was attached to the Notice
of Reassessment of January 19, 2012. A copy of this T7W-C is attached hereto
and marked as Exhibit "A".
6. A letter explaining the variation to the Appellant's assessment
was sent to the Appellant by registered mail on January 19, 2012. A copy of
this letter is attached hereto and marked as Exhibit "B".
7. The letter was carbon-copied to the lawyer for the Appellant,
Mr. Carson. The Appellant had authorized the Agency to communicate with Mr.
Carson on his behalf by written authorization dated August 3, 2011.
8. The Agency's address on file for Mr. Carson is Carson &
Company Law Offices, 803 Main St., Melfort, SK, SOE 1A0.
9. The copy of the letter of January 19, 2012, would have been
sent to Mr. Carson by regular mail.
10. My normal practice is to place a letter in an envelope and then
to place the envelope in the "out" box for pick-up by our mail clerk.
11. The mail clerk picks up once in the morning and once in the
afternoon. My understanding is that items usually leave our office the
following day.
12. At no time did the Appellant or Mr. Carson communicate with the
Agency to say that the Reassessment of January 19, 2012, or the explanatory
letter of the same date, was not received.
[14]
The Appellant filed two
affidavits, one from Mrs. Cindy Nelson, legal assistant with the law firm
Carson & Co., sworn on August 30, 2013 and one from the Appellant, sworn on
August 21, 2013. In her affidavit, Mrs. Nelson affirmed that:
3. I have searched our file 24,226 which pertains to Tax Court of
Canada file 2012-179(IT)G to determine whether or not Exhibits
"A" and "B" to the Affidavit of Jonathon Young-Hamel sworn
August 29, 2013, was ever received. I can state positively that the said
Exhibit "A" and "B" have never been received at our offices
through regular mail or by any other means. I am entirely familiar with the
delivery and receipt of registered domestic mail within Canada Post. I have
reviewed the Affidavit of Jonathon Young-Hamel sworn August 29, 2013, in which
he alleges in paragraph 6 that Exhibit "B" was sent by registered
mail to the Appellant on January 19, 2012.
4. Annexed hereto as Exhibit "A" to this my Affidavit is
a true copy of the front and back of a registered mail receipt.
5. If, as Mr. Jonathon Young-Hamel swears, registered mail had
been sent to Gregory Pylatuke his file would contain the 11 digit tracking
number as well as an accepting location stamp on the back confirming that the
mail had reached the post office in Saskatoon.
6. After registered mail reaches the accepting location it is then
possible through the Canada Post website to track the delivery through the 11
digit number. A search result can be obtained if the mail actually reaches its
destination in Quill Lake, Saskatchewan.
7. The failure of Jonathon Young-Hamel to provide the 11 digit
tracking code for the registered mail or any website result from the mail
destination suggests to me that the mail never reached the post office in Saskatoon.
[15]
In his affidavit, Mr.
Pylatuke affirmed, among other things, that:
4. That I have never received a similar letter or Notice of
Reassessment calculation of any kind respecting my personal appeal. The first
notification of the results of my assessment came in the form of a Statement of
Account which indicated that I owed $ 210,743.03. A copy of that Statement of
Account annexed hereto as Exhibit "B". On August 21, 2013, prior to
signing this Affidavit I was shown Exhibit "D" to the Affidavit of
Shelley Eichorn which purports to be the decision on my Objection. That
document was never received by me and this is the first time that I have seen
it.
5. Upon receipt of that Statement of Account in Exhibit
"B" I forwarded the document to my solicitor with the fax cover sheet
dated March 2, 2012, annexed hereto as Exhibit "C". At this point in
time a Notice of Appeal had already been filed with the Tax Court of Canada (on
March 2, 2012).
6. I have been informed by my solicitor, Grant Carson and do
verily believe that the Carson & Co., Law Office, has not received Notices
of Reassessment for my personal Appeal.
7. In early April 2012, I received the invoice with processing
date March 30, 2012, annexed hereto as Exhibit "D". On April 10,
2012, I forwarded that invoice to my solicitor with instructions to file an
Appeal based upon the same grounds (or a minor image of grounds) contained in
the corporate Appeal filed March 2, 2012.
8. The Respondent in this case did not raise any objection to time
limits in filing its reply to our Notice of Appeal and this matter was raised
for the first time on or about June 11, 2013.
[16]
From the evidence
before me, I am satisfied that the 2006 reassessment was issued on January 19,
2012. However, the record does not satisfy me that it was mailed to the
Appellant and to the Appellant's lawyer. The Respondent would have to bring
more specific evidence of having mailed the said reassessment, particularly
when it was sent by registered mail.
[17]
The fact that the
Appellant became aware of the 2006 reassessment when he received on March 2,
2012, a statement of account dated February 27, 2012, showing that a 2006
reassessment was issued on February 19, 2012 and that he did not take any steps
to obtain a copy of the said reassessment, does not have the effect of
validating the reassessment.
[18]
In the circumstances, I
will dismiss the Respondent's motion and will allow the Appellant's motion for an
extension of time to file an appeal for the 2006 taxation year. The notice of
appeal filed on April 30, 2012 is deemed to be a valid notice of appeal
instituted on the date of this Order. The matters raised in the 2006
reassessment shall then be heard on their merits. Considering my decision on
the first issue of the Respondent's motion, it is not necessary for me to deal
with the other issues therein. Each party shall bear its own costs.
Signed at Ottawa, Canada, this 21st day of November 2013.
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