Docket: 2008-4192(IT)APP
BETWEEN:
GEORGE SAMPSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard by conference call on May
4, 2012,
at Ottawa, Ontario.
Before: The Honourable
Justice B. Paris
Appearances:
|
For the Appellant:
|
The
Appellant himself
|
|
Counsel for the Respondent:
|
Nadine Taylor Pickering
|
____________________________________________________________________
JUDGMENT
The application for an order extending the time within
which a notice of appeal to the reassessments made under the Income Tax Act
for his taxation years 2003, 2004, 2005 and 2006 may be filed with the Minister
of National Revenue is dismissed in accordance with the attached Reasons for Judgment.
Signed at Toronto, Ontario,
this 11th day of May 2012.
" B. Paris "
Citation: 2012 TCC 156
Date: 20120511
Docket: 2008-4192(IT)APP
BETWEEN:
GEORGE SAMPSON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Paris J.
[1]
Mr. Sampson has applied
for an extension of time to institute an appeal from reassessments of his 2003,
2004, 2005 and 2006 taxation years.
[2]
In order to obtain an
extension of time, an applicant must meet the conditions set out in subsection
167(5) of the Income Tax Act, which reads:
When order to be made - 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.
2003, 2004 and 2005 Taxation Years
[3]
The application with
respect to the 2003, 2004 and 2005 taxation years cannot succeed because Mr.
Sampson has not met the requirement in paragraph 167(5)(a) of the Act
that the application be made within one year of the expiration of the 90-day
limit for filing a notice of appeal set out in subsection 169(1) of the Act.
[4]
The Respondent filed an
affidavit of an officer of the Canada Revenue Agency (CRA) setting out that Mr.
Sampson was reassessed on September 8, 2006, and filed a notice of objection to
the reassessments on October 10, 2006, and that the reassessments were
confirmed on February 6, 2008. Mr. Sampson did not dispute these dates. He
simply said that whenever he received material from the Canada Revenue Agency,
he forwarded it to OI Employee Leasing Inc. (OI), and that it was OI's
responsibility to take care of it.
[5]
There is no evidence that OI took
any steps relating to the confirmation of the reassessments for 2003, 2004 and
2005 until December 22, 2008, when this application was filed with the Court. This
was more than one year and 90 days after the reassessments were confirmed. The
deadline set out in paragraph 167(5)(a) for requesting an extension of
time is absolute. Therefore, Mr. Sampson's application in respect of those
years must be dismissed.
2006
Taxation Year
[6]
The affidavit filed by the
Respondent shows that Mr. Sampson was last reassessed for his 2006 taxation
year on March 6, 2008, and that he objected to the reassessment by notice dated
March 20, 2008. The affidavit also shows that the Minister confirmed the
reassessment by notice dated August 14, 2008. The application to extend time to
appeal this reassessment was made December 23, 2008, and therefore was within
the year and 90-day limit found in paragraph 167(5)(a) of the Act.
[7]
However, I am not satisfied that
Mr. Sampson has shown that he has met either of the conditions set out in paragraph
167(5)(b)(i), which requires that an applicant show either that he was
unable to act or instruct another to act in his name, or that he had a bona
fide intention to appeal within the time otherwise limited for appealing
the reassessment (i.e. 90 days from the date of confirmation). There is no
evidence before me to suggest that between August 14, 2008 and November 12,
2008, Mr. Sampson was unable to act or to instruct anyone else to act for him.
Furthermore, Mr. Sampson has not shown that he had the intention to appeal
within that period. There is no proof before me that he instructed OI to file an
appeal on his behalf. His statement that he forwarded any materials he received
from the CRA to OI, and expected OI to take care of things is insufficient to
demonstrate a specific "bona fide" intention to appeal the
reassessment during the relevant period. The application filed on December 23,
2008 on behalf of Mr. Sampson by OI sets out that a notice of appeal (presumably
from the reassessments of the 2003, 2004 and 2005 taxation years) was submitted
in May 2007 but that no filing fee or request to waive the filing fee was
subsequently submitted. The application goes on to state that "[u]pon
receiving another Notice of Confirmation for the 2006 taxation year and upon
learning that a filing fee was no longer required, a new Notice of Appeal is
being submitted".
[8]
It appears to me that Mr. Sampson
chose not to appeal the reassessment before submitting his application on
December 23, 2008 because he did not wish to pay the required filing fee or to request
a waiver of the filing fee. In any event, he has not provided any evidence
regarding what, if any, follow-up was done by him with OI after he forwarded
the Notice of Confirmation for 2006 to OI. The onus in this application is on
Mr. Sampson to show that he had a bona fide intention to appeal
within 90 days of the confirmation of the reassessment, and in the absence of
evidence as to what steps he took or attempted to take, (if any) through OI to
appeal, that onus has not been met.
[9]
This conclusion is sufficient to
dispose of the application in respect of the 2006 taxation year. Therefore, it
is not necessary for me to deal with the respondent's submission that
Mr. Sampson has not shown that he had reasonable grounds to appeal the
reassessment, as required by subparagraph 167(5)(b)(vi) of the Act.
[10]
For these reasons, the application
to extend time to institute appeals from the reassessments of Mr. Sampson's
2003 to 2006 taxation years, inclusive, is dismissed.
Signed at Toronto, Ontario,
this 11th day of May 2012.
" B. Paris "
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