Docket: 2011-1861(IT)APP
BETWEEN:
JOSEPH LETENDRE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on December 14, 2011 at Edmonton, Alberta
Before: The Honourable
Justice J.M. Woods
Appearances:
|
Agent for the Applicant:
|
Wanda
Flett
|
|
Counsel for the Respondent:
|
Paige Atkinson
|
____________________________________________________________________
ORDER
The
application, for an Order extending the time within which to serve a notice of
objection under the Income Tax Act with respect to an assessment for the
2004 taxation year, is dismissed.
Signed at Toronto, Ontario this 29th day of December 2011.
“J. M. Woods”
Citation: 2011 TCC 577
Date: 20111229
Docket: 2011-1861(IT)APP
BETWEEN:
JOSEPH LETENDRE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Woods J.
[1]
Joseph Letendre brings an
application under the Income Tax Act to extend the time for filing a
notice of objection to an assessment. The relevant taxation year is 2004.
[2]
The Crown submits that the
application should be dismissed because the last assessment was issued outside
the normal reassessment period and there is no right to object in these
circumstances.
[3]
The Crown relies on s. 165(1.2)
and s. 152(4.2) of the Act, which are reproduced in part below.
165.(1.2)
Limitation on Objections. Notwithstanding subsections 165(1) and 165(1.1),
no objection may be made by a taxpayer to an assessment made under subsection
118.1(11), 152(4.2), 169(3) or 220(3.1) nor, for greater certainty, in respect
of an issue for which the right of objection has been waived in writing by the
taxpayer.
152.(4.2) Reassessment with taxpayer’s
consent. Notwithstanding subsections (4), (4.1) and (5), for the purpose of
determining, at any time after the end of the normal reassessment period of a
taxpayer who is an individual (other than a trust) or a testamentary trust in respect
of a taxation year, the amount of any refund to which the taxpayer is entitled
at that time for the year, or a reduction of an amount payable under this Part
by the taxpayer for the year, the Minister may, if the taxpayer makes an application
for that determination on or before the day that is ten calendar years after
the end of that taxation year,
(a) reassess tax, interest or penalties payable
under this Part by the taxpayer in respect of that year; […]
Factual
Background
[4]
Mr. Letendre failed to file an
income tax return for the 2004 taxation year within the proper time.
Accordingly, the Minister of National Revenue issued an initial assessment without
reviewing a return. The assessment was made on June 8, 2006.
[5]
Mr. Letendre subsequently filed an
income tax return for the 2004 taxation year on March 1, 2010.
[6]
Since the return was
made outside the normal reassessment period, the Minister considered that the return was a request by Mr. Letendre
for adjustments that could be made by an assessment pursuant to s. 152(4.2) of
the Act. Reassessments under that provision were issued on April 7, 2010
and October 6, 2010 and Mr. Letendre was notified that there was no right to
object (CRA letter dated April 6, 2010). An affidavit filed by the Crown states
that the latter reassessment reflects the income tax return that was filed on
March 1, 2010.
[7]
Mr. Letendre then applied to the
Canada Revenue Agency (the “CRA”) for an extension of time to file a notice of
objection for the 2004 taxation year, by notice dated March 27, 2011. The
request was denied.
[8]
Mr. Letendre then filed a similar
application with the CRA which appears to have been forwarded to the Tax Court
of Canada on June 2, 2011. It is this application that is at issue.
Discussion
[9]
The legislative
provisions above make it clear that Mr. Letendre
is precluded from objecting to the last assessment issued for the 2004 taxation
year. Since that assessment nullified previous assessments, this application
must be dismissed.
[10]
By the time that Mr. Letendre
filed an income tax return on March 1, 2010, the three-year deadline for issuing
assessments had already passed. Assessments of tax after that period are
limited by s. 152(4) of the Act. Accordingly, the Minister could only make
tax adjustments in Mr. Letendre’s favour pursuant to the provisions of
s. 152(4.2).
[11]
In these circumstances, it is
clear that Mr. Letendre is not permitted to make a formal objection to the last
assessment: subsection 165(1.2) of the Act.
[12]
Although this is
sufficient to dispose of this application, I would also comment briefly concerning
a garnishment issue. Mr. Letendre submits that
the CRA has not provided a satisfactory accounting for taxes that were
garnisheed from Mr. Letendre’s wages payable by Big D Contracting. The agent
for Mr. Letendre submitted at the hearing that this likely is the only item in
dispute. When this
matter was raised at the hearing,
counsel for the respondent undertook to follow up with the CRA regarding the
garnishment issue.
[13]
As for this application, it will
be dismissed.
Signed at Toronto, Ontario this 29th day of December 2011.
“J. M. Woods”
CITATION: 2011 TCC 577
COURT FILE NO.: 2011-1861(IT)APP
STYLE OF CAUSE: JOSEPH LETENDRE and HER MAJESTY THE QUEEN
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: December 14, 2011
REASONS FOR ORDER BY: The
Honourable Justice J.M. Woods
DATE OF ORDER: December 29, 2011
APPEARANCES:
|
Agent for the
Applicant:
|
Wanda Flett
|
|
Counsel for the
Respondent:
|
Paige Atkinson
|
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Ontario
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