Teskey, T.C.C.J.:— The appellant appeals his reassessments for the years 1981 and 1982.
Issue
The only issue before me is whether the reassessments were made within the time limit for doing so. What is in dispute is whether the notices of assessments (the "notices"), were "sent" in accordance with subsection 152(2) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the"Act").
Facts
Both parties are in agreement as to the following facts:
— last date available to the Minister of National Revenue (the"Minister") to issue the reassessments and send notice thereof was May 17, 1988;
— the notices are dated May 9, 1988 and contain the appellant's residential address namely, 6369 McCleary Street, Vancouver, British Columbia, V6N 165;
—— the notices were mailed by registered mail on May 9, 1988 (the address to which is unknown);
— the notices that were mailed by registered mail on May 9, 1988, were not delivered to the appellant and returned to the respondent;
— the notices were then mailed out by ordinary mail in June of 1988 and received by the appellant on June 27, 1988;
—— the appellant, his wife, and three infant children have resided at 6369 McCleary Street, Vancouver, British Columbia, VEN 1G5, continuously from before 1980 up to the present time, all T1 tax returns since 1980 have shown this address and the appellant has never instructed the respondent to use a different address.
There is no agreement between the parties as to the address on the envelope containing the notices that were mailed by registered mail on May 9, 1988.
Paragraphs 4 and 5 of the respondent's reply to the notice of appeal (the "reply") reads as follows:
4. With respect to Paragraph 12 he says that the notices of Reassessment, dated May 9, 1988, were mailed to the taxpayer's address by registered mail, on May 9, 1988, but were returned by the Post Office, marked "Unclaimed". The said notices were subsequently remailed to the taxpayer’s address by regular mail, June 23, 1988.
5. In reassessing the appellant with respect to the dividends, the respondent relied upon the following assumptions of fact, inter alia:
(a) the facts admitted and set out above...
The Minister has not produced any evidence to substantiate the portion of paragraph 4 that alleges that the registered mail was "mailed to the taxpayer's address".
The affidavit of the appellant, filed on this appeal, which he was cross- examined on by counsel for the Minister, in paragraph 6 thereof states:
At no time prior to June 27, 1988, did I receive notice of or have any knowledge of the fact that any attempts had been made to deliver the said notices to me at any earlier date.
Attached to the notices of reassessment, received by the appellant on June 27, 1988, is the following notation:
The attached assessment notice and/or correspondence was originally mailed on May 9, 1988, but was subsequently returned to this office as undeliverable by the post office, due to an address change and is now being redirected to your new address.
Revenue Canada, Taxation June 23, 1988 per [signature illegible]
From this notation, I can conclude, and do conclude, that the notices received by the appellant on June 27, 1988, were mailed to him by ordinary mail on June 23, 1988 or immediately thereafter.
Neither the original envelope that contained the notices, nor the Canada Post registered receipts were produced before the Court. The Minister did file an affidavit with the Court, by an officer of the Department of National Revenue, who had charge of the appropriate records. The only pertinent paragraph in the affidavit reads as follows:
Attached hereto, and marked as Exhibit A, is a true copy of a notice of reassessment of the appellant's 1981 taxation year, made on behalf of the Minister of National Revenue, on May 9, 1988. Attached hereto, and marked as Exhibit B, is a true copy of a notice of reassessment for the appellant's 1982 taxation year, made on behalf of the Minister of National Revenue, on May 9, 1988.
The relevant provisions of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act") are subsections 152(2), 244(14) and 244(15), which read as follows:
152(2) After examination of a return, the Minister shall send a notice of assessment to the person by whom the return was filed.
244(14) For the purposes of this Act, the day of mailing of any notice or notification described in subsection ... or of any notice of assessment shall be presumed to be the date of such notice or notification.
(15) Where any notice of an assessment has been sent by the Minister as required by this Act, the assessment shall be deemed to have been made on the day of mailing of the notice of the assessment.
It is quite obvious from the evidence of the appellant and the notation attached to the notices that they were mailed on or after June 23, 1988. I find that the appellant did not know of or receive the notices until after that date, and that the notices were not forwarded by ordinary mail to the appellant until on or after June 23, 1988.
The onus is on the Minister to prove that the notices were sent to the proper address. There is no way that the appellant can prove this. All evidence is in the hands of the Minister. The onus is on the Minister to prove that the envelope containing the notices were in fact properly addressed. Herein, the Minister's own documents acknowledge (and we know there was no address change) that they were returned due to an address change, this together with the appellant's sworn testimony that he did not receive the notices places the onus on the Minister to prove that the "sending" was addressed to the right address.
My colleague Judge Kempo's decision of Mid-Plains Contractors Ltd. v. The Queen, a decision released March 15, 1993, is authority for the proposition that the onus is on the Minister to prove, by satisfactory evidence, the address on the envelope.
The Exchequer Court of Canada case of Scott v. M.N.R., [1960] C.T.C. 402, 60 D.T.C. 1273 is authority for the law that an assessment is not made until the Minister has completed his statutory duties as an assessor by giving the prescribed notice. Thurlow, J. said at page 416 (D.T.C. 1280):
I am accordingly of the opinion that the giving of notice of assessment is part of the fixation operation referred to as an assessment in the statute and that an assessment is not made until the Minister has completed his statutory duties as an assessor by giving the prescribed notice.
This case also stands for the principle that a notice of assessment sent to a wrong address or a fictitious address, that the assessment has not been completed.
Thurlow, J. went on to say at page 417 (D.T.C. 1281):
... it is in my opinion also to be inferred that Parliament never intended that such a notice could be given effectively by the “ mailing” of it to the taxpayer at some wrong or fictitious address and I find nothing in the statute to suggest that Parliament intended that a taxpayer should be bound by an assessment or fixed with notice of an assessment upon the posting of a notice thereof addressed to him elsewhere than at his actual address or at an address which he has in some manner authorized or adopted as his address for that purpose.
In the Scott case, supra, the Minister sent the notice of reassessment to the appellant in care of a solicitor, who was not at that time acting for the appellant or authorized to receive the notice. Thurlow, J. went on to say at page 418 (D.T.C. 1281):
Nor does it appear that the notice so sent in fact reached him as a result of the mailing of it on May 28, 1957, either in the ordinary course of post, or later. In my opinion, such a mailing or sending was not a valid mailing or sending of the notice within the meaning of section 46(2) of the Act, and it follows that the reassessment was not made within the four year period. . . .
The Minister, not having proved that the notices were sent to the proper address on or before May 17, 1988, the appellant is entitled to have the assessments vacated.
Based on the evidence before me and for these reasons, the appeal is allowed, with costs, and the assessments are vacated.
Appeal allowed.
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