Citation: 2010TCC653
Date: 20101222
Docket: 2010-3250(GST)APP
BETWEEN:
BRENT DAVIS,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
Although it is not entirely clear,
it appears that the Applicant on October 15, 2010 filed an application to
extend the time within which he could institute an appeal in relation to the
reassessment of his liability under the Excise Tax Act.
[2]
The Applicant had objected to assessments
that had been issued under the Income Tax Act in relation to his
liability under that Act for 2002, 2003 and 2004. The inventory control
number that had been assigned to the Applicant’s objection in relation to these
assessments was “GB07185110367”. Following the filing of his notice of
objection, the Applicant was reassessed for each of these three years on
October 9, 2007.
[3]
The Applicant was also reassessed
under the Excise Tax Act for the reporting periods from January 1, 2002
to December 31, 2004. The Applicant also objected to this reassessment and the
decision and Notices of Reassessment for these reporting periods were sent to
the Applicant on February 21, 2008.
[4]
The Applicant then wrote to this
Court on April 7, 2008. This letter stated as follows:
To Whom It May
Concern: (Reference GB#071851150367)
We are
appealing our income tax rulings, but realize it will be determined by the
results of Brent’s business tax audit.
We wish to
appeal the following items: (1) motor vehicle expenses with reference to the
car for the years 2002, 2003 and 2004. (2) telephone and utilities for 2004 (3)
interest expenses for 2002-2004.
We are
appealing the Tax Court decision reference #2003-4189 (GST) I, regarding HST
paid for out of country warranty work. Reference Section 13 of Part V of
Schedule VI of the Canada Excise Tax Act.
[5]
The reference number (GB07185110367)
is the number assigned by the Canada Revenue Agency in relation to his
objection filed under the Income Tax Act. The letter specifically indicates
that the Applicant was appealing the income tax rulings. The items identified
also confirm that he was appealing the income tax ruling (and not the HST
reassessment) as one of the specific items identified was “interest expenses”
which would be relevant in an income tax appeal but not in an HST appeal as no
HST would be paid in relation to any amount paid as interest. The payment of
interest is a financial service and therefore is an exempt supply under section
1 of Part VII of Schedule V to the Excise Tax Act.
[6]
The only reference to HST is in
the last paragraph where the Applicant indicates that he is appealing a
previous decision of this Court. Appeals from any decision of this Court are to
be made to the Federal Court of Appeal, not to this Court. Therefore this
letter is not a valid Notice of Appeal in relation to the reassessment of his
net tax liability under the Excise Tax Act for the reporting periods
from January 1, 2002 to December 31, 2004.
[7]
Since the Applicant filed this
letter on or after April 7, 2008, it was filed after the time period permitted
to file an appeal under the Income Tax Act. Subsection 169(1) of the Income
Tax Act provides that:
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 mailed to the taxpayer under section 165 that the Minister
has confirmed the assessment or reassessed.
[8]
Since more than 90 days had
elapsed from the date that the Applicant was reassessed under the Income Tax
Act (following the filing of his notice of objection under that Act)
on October 9, 2007, the Applicant would have had to make an application for an
extension of time to file an appeal under the Income Tax Act.
[9]
Subsections 167(1), (2), (3) and
(5) of the Income Tax Act provide as follows:
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.
…
(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.
[10]
Justice Sharlow of the Federal
Court of Appeal in Dewey v. The Queen, 2004 FCA 82, 2004 DTC
6159, [2004] 2 C.T.C. 311 stated that:
3 Section
167 of the Income Tax Act permits the Tax Court to extend the time for
commencing an appeal to the Tax Court, if a number of the conditions are met. A
failure to meet any one of the conditions is fatal to the application.
[11]
The letter does not address the
reasons why the appeal under the Income Tax Act was not instituted
within 90 days of October 9, 2007 and therefore does not satisfy the
requirements of subsection 167(2) of the Income Tax Act.
[12]
The Applicant did not take any
further action or file any further documents until October 15, 2010 when he
filed a covering letter and the same letter that he had filed in 2008. The only
reference to HST is the reference to the Applicant appealing a previous
decision of this Court. As noted above, appeals from decisions of this Court
are not made to this Court but to the Federal Court of Appeal. This is not a
valid appeal to this Court under the Excise Tax Act.
[13]
As well even if this were to be
treated as an application to extend the time to institute an appeal under the Income
Tax Act, this letter filed on October 15, 2010 not only suffers from the
same deficiency noted above but also was filed after the expiration of the time
period within which an application to extend the time to institute an appeal
can be made. The time period to make an application to extend the time for
instituting an appeal under the Income Tax Act would have expired in
January 2009 (which would have been one year after the expiration of the 90 day
period from the date of the reassessment (October 9, 2007)).
[14]
The Excise Tax Act also
includes a similar provision that limits the time within which an application
to extend the time for instituting an appeal under that Act can be made.
Section 305 of the Excise Tax Act provides as follows:
305. (1)
Where no appeal to the Tax Court under section 306 has been instituted within
the time limited by that provision for doing so, a person may make an
application to the Tax Court for an order extending the time within which an
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
to the Tax Court was not instituted within the time otherwise limited by this
Part for doing so.
(3) An
application made under subsection (1) shall be made by filing in the Registry
of the Tax Court, 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) After
receiving an application made under this section, the Tax Court shall send a
copy of the application 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 otherwise
limited by this Part for appealing; and
(b) the
person demonstrates that
(i) within
the time otherwise limited by this Part for appealing,
(A) the
person was unable to act or to give a mandate to act in the person's name, or
(B) the
person 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 it to be made, and
(iv) there
are reasonable grounds for appealing from the assessment.
[15]
Section 306 of the Excise Tax
Act provides that:
306. A person
who has filed a notice of objection to an assessment under this Subdivision may
appeal to the Tax Court to have the assessment vacated or a reassessment made
after either
(a) the
Minister has confirmed the assessment or has reassessed, or
(b) one
hundred and eighty days have elapsed after the filing of the notice of
objection and the Minister has not notified the person that the Minister has
vacated or confirmed the assessment or has reassessed,
but no appeal
under this section may be instituted after the expiration of ninety days after
the day notice is sent to the person under section 301 that the Minister has
confirmed the assessment or has reassessed.
[16]
While the date of the Notice of
Reassessment under the Excise Tax Act (February 21, 2008) was later than
the date of the notice of reassessment under the Income Tax Act, the
time limit for making an application for an extension of time within which an
appeal may be instituted under the Excise Tax Act in relation to this
reassessment would also have expired long before October 15, 2010.
[17]
For the above reasons the
Applicant’s application to extend the time within which an appeal may be
instituted under the Excise Tax Act is dismissed.
Signed at Halifax, Nova Scotia, this 22nd day of December,
2010.
“Wyman W. Webb”
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