Citation: 2012TCC197
Date: 20120608
Docket: 2011-3089(IT)I
BETWEEN:
ANDRE DIONNE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The Appellant filed a
Notice of Appeal in which the Appellant purported to appeal a determination
made by the Canada Revenue Agency on August 12, 2011 that the Appellant’s daughter
was not eligible to claim the disability tax credit under the Income Tax Act
(the “Act”) for any of the taxation years from 2004 to 2010, inclusive.
The Appellant, in his Notice of Appeal, was also requesting that he be allowed
a claim for his daughter’s unused disability tax credits for the taxation years
2004 to 2010 and that his spouse should receive additional Canada Child Tax
Benefit (“CCTB”) payments for the period from January 2004 to now.
[2]
At the commencement of
the hearing the Respondent brought a motion to quash the Appellant’s appeals on
the basis that:
(a)
to the extent that the
appeals were in relation to an assessment of any of the Appellant’s 2004 to
2010 taxation years, inclusive, the Appellant had not served any notice of
objection in relation to any such assessment prior to commencing his appeal;
and
(b)
to the extent that the
appeal is in relation to the determination dated August 12, 2011, the Appellant
did not serve a notice of objection to this determination prior to commencing
this appeal.
[3]
It is the position of
the Appellant that his representative’s letter of October 15, 2009 was his
notice of objection to the assessments issued for the taxation years referred
to in his Notice of Appeal. On October 15, 2009, the representative of the Appellant
wrote a letter to the “Disability Tax Credit Assessor, Surrey Tax Centre” in
which the representative was requesting that adjustments be made to the Appellant’s
T1 income tax returns for 2002 to 2008 and that additional CCTB payments be
made to the Appellant’s spouse, Lisa Dionne, for the period from 2003 to 2008.
[4]
If an individual is
eligible to claim the disability tax credit as provided in section 118.3 of the
Act, a parent (and certain other relatives) may claim that individual’s
unused disability tax credit provided that the conditions as set out in
subsection 118.3(2) of the Act are satisfied. As well, the amount
paid as a CCTB amount to the “eligible individual” in respect of that
individual will increase if a positive amount is determined for M in the formula in
subsection 122.61(1) of the Act.
[5]
The Appeal was only
filed by Andre Dionne. While he was claiming the unused disability tax credit,
the notice of appeal requests that additional CCTB amounts be paid to his
spouse, who is not a party to the appeal. Any objection to or appeal from any
determination or decision with respect to whether Lisa Dionne is entitled to
any additional amounts of CCTB would have to be instituted by her in accordance
with the applicable provisions related to such objection or appeal.
[6]
With respect to the
Appellant’s appeal in relation to the assessment of his 2004 to 2010 taxation
years (which would only relate to his claim for unused disability tax credits),
there was no indication in the letter dated October 15, 2009 that the
Appellant was objecting to any assessment issued for any of his taxation years.
He was simply requesting an adjustment to his tax returns. Also, the letter was
sent to the Disability Tax Credit Assessor, not the Chief of Appeals.
Subsection 165(2) of the Act provides that:
165 (2) A notice of objection under this section shall be served by
being addressed to the Chief of Appeals in a District Office or a Taxation
Centre of the Canada Revenue Agency and delivered or mailed to that Office or
Centre.
[7]
The T1 Adjustment
request refers to the taxation years 2002 to 2008. In the Notice of Appeal the
years were changed to 2004 to 2010. The following is a list of the dates that
the Appellant’s liability under the Act was assessed for each of the years referred to in the
Notice of Appeal:
|
Taxation Year
|
Date of Assessment
|
|
2004
|
May 12, 2005
|
|
2005
|
June 15, 2006
|
|
2006
|
October 16, 2007
|
|
2007
|
November 30, 2009
|
|
2008
|
November 30, 2009
|
|
2009
|
May 24, 2011
|
|
2010
|
May 9, 2011
|
[8]
The time period within a notice of objection could have
been served in relation to the assessment of the Appellant’s tax liability for
any of the taxation years 2004, 2005 or 2006 had expired by October 15, 2009 as
had the time period within which an application could have
been made to extend the time to serve the notice of objection in relation to
any of these taxation years. Therefore even if the Appellant would have indicated
that he was objecting to any of these assessments and would have sent the
letter to the Chief of Appeals, the time within which he could have served a
notice of objection in relation to these taxation years (or applied to have the
time extended to serve a notice of objection) had expired before he sent the
letter on October 15, 2009.
[9]
For the taxation years
2007, 2008, 2009 and 2010, the letter of October 15, 2009 could not have been
an objection to any assessment of any of these years as the Appellant had not been
assessed for any of these years by that date.
[10]
Subsection 169(1) of the Act
provides as follows:
169. (1) 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,
but no appeal under this section may be instituted after the expiration
of 90 days from the day notice has been sent
to the taxpayer under section 165 that the Minister has confirmed the
assessment or reassessed.
[11]
In Bormann v. The Queen,
2006 DTC 6147, the Federal Court of Appeal stated as follows:
3 Section 169(1) of the Income Tax Act obliges a taxpayer
to serve Notice of Objection in order to appeal an assessment. In other words,
service of a Notice is a condition precedent to the institution of an appeal.
4 As mentioned, the appellant did not serve a Notice of
Objection nor is there evidence that the appellant made an application to the
Ministry to extend the time to file a Notice of Objection.
5 Once it is clear that no application for an extension of time
was made, the law is clear that there is no jurisdiction in the Tax Court to
further extend the time for equitable reasons.
Minuteman Press of Canada Company Limited v. M.N.R., 88 DTC
6278, (F.C.A.).
6 As a result, there is no basis upon which it can be said that
the Tax Court Judge erred in quashing the appellant's appeals for the 1992 to
1998 taxation years.
[12]
Since the Appellant did
not serve a valid notice of objection with respect to any assessment issued in
relation to any of his 2004 to 2010 taxation years, inclusive, before he filed
his Notice of Appeal to this Court on October 6, 2011, he failed to satisfy the
“condition precedent to the institution of an appeal” and his appeals in
relation to the assessments issued for these taxation years are quashed.
[13]
To the extent that the
appeal is an appeal from the determination dated August 12, 2011, subsection
152(1.01) was added to the Act in 2011. This subsection provides as
follows:
152 (1.01) The Minister shall, if an individual requests by
prescribed form, determine with all due dispatch whether an amount is
deductible, or would if this Act were read without reference to paragraph
118.3(1)(c) be deductible, under section 118.3 in computing the
individual’s tax payable under this Part for a taxation year and send a notice
of the determination to the individual.
[14]
If taxes are payable by
an individual for 2008 and 2009 (and therefore that individual could have filed
a notice of objection in relation to the assessments issued for such years),
this new provision will only apply if that individual has filed the appropriate
form after June 26, 2011. For 2008 and 2009 taxes were payable by the Appellant
under the Act and therefore this new provision would only apply to the
Appellant if the form had been filed after June 26, 2011. Since the Appellant
had filed the form on October 15, 2009, this new provision is not applicable in
relation to the question of whether he is entitled to deduct an amount under
subsection 118.3(2) of the Act in computing his tax payable for any of
the taxation years referred to in his representative’s letter of October 15,
2009.
[15]
The determination that
was made on August 12, 2011 was in relation to the Appellant’s daughter’s
eligibility for the disability tax credit. The appeal procedure that must be
followed to appeal this determination is the same appeal procedure that must be
followed if a person should choose to appeal an assessment or a reassessment. Therefore a valid
notice of objection must be served before an appeal can be instituted to this
Court. As no notice of objection was served in relation to this determination
before the appeal was instituted, the appeal to this Court from this
determination is quashed.
[16]
As a result the
Appellant’s appeals in relation to his 2004 to 2010 taxation years, inclusive,
are quashed, without costs and the appeal from the determination dated August
12, 2011 that the Appellant’s daughter was not eligible to claim the disability
tax credit, is also quashed, without costs.
Signed at Ottawa, Canada, this 8th day of June 2012.
“Wyman W. Webb”
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