Citation: 2010TCC387
Date: 20100719
Docket: 2009-769(IT)I
BETWEEN:
AMBARO M. GULED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb, J.
[1]
The Respondent filed a
Motion to quash the appeal that the Appellant has filed in relation to the
reassessment of her 2005 taxation year. The basis for this Motion is that:
(a)
this appeal was not
filed within 90 days of the date that the notice that the Minister had
confirmed the reassessment was mailed to the Appellant; and
(b)
the Appellant did not
make an application to extend the time within which her appeal may be filed to
this Court within the time period specified in section 167 of the Income Tax
Act (the “Act”).
The Respondent’s Motion does not apply to
the appeal filed by the Appellant in relation to the reassessment of her tax
liability for 2003, 2004, and 2006.
[2]
The Appellant was
reassessed in respect of her tax liability for 2005 by a Notice of Reassessment
dated July 19, 2007. She filed a Notice of Objection and the Minister confirmed
the reassessment of her 2005 taxation year and sent a notice of confirmation to
her on March 26, 2008. The Appellant had retained Tomlin Associates to
represent her but it appears that they did not file an appeal on her behalf in
relation to this reassessment.
[3]
On September 7, 2008
the Appellant wrote to the “Chief of Appeals of Revenue Canada” to request an extension of time to appeal in
relation to the reassessments issued for 2003, 2004, 2005 and 2006. On March 6,
2009 the Appellant filed an appeal to this Court.
[4]
Subsection 169(1) of
the 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.
[5]
The time period within
which an appeal may be made to this Court, as set out in this subsection, is 90
days from the date the notice of confirmation of the reassessment was mailed to
the Appellant. Since the notice of confirmation was mailed to the Appellant on
March 26, 2008, this 90 day period expired long before the Notice of Appeal was
filed on March 6, 2009.
[6]
A taxpayer may make an
application to extend the time within which an appeal may be made to this
Court. Section 167 of the Act governs such applications. This section
provides that:
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.
(4) The Tax Court of Canada shall send a copy of each application
made under this section 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 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.
[7]
In Dewey v. The
Queen, 2004 FCA 82, 2004 D.T.C. 6159, [2004] 2 C.T.C. 311, Justice Sharlow
writing on behalf of the Federal Court of Appeal noted 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.
[8]
The letter that the
Appellant wrote to the Chief of Appeals cannot be considered to be an
application to extend the time to appeal to this Court as it was not filed in
the Registry of the Tax Court of Canada as required by subsection 167(3)
of the Act.
[9]
The Notice of Appeal
filed on March 6, 2009 cannot be considered to be an application for an
extension of time within which such appeal may be filed as it does not “set out
the reasons why the appeal was not instituted within the time limited by
section 169 for doing so”, which is a requirement of subsection 167(2) of the Act.
In seems clear that the Appellant filed an appeal on March 6, 2009, not an
application to extend the time within which an appeal may be filed as there was
no attempt to address the requirements of subsection 167(2) of the Act. This
is a statutory requirement that must be satisfied. No Order to extend the time
within which an appeal may be made to this Court can be issued unless an
application is made within the time specified in paragraph 167(5)(a) of the Act.
This application must be filed in the Registry of this Court (subsection 167(3)
of the Act) and must include the reasons “why the appeal was not
instituted within the time limited by section 169 for doing so” (subsection
167(2) of the Act).
[10]
Since the appeal was
filed more than 90 days after the notice of confirmation was mailed to the
Appellant it cannot be a valid appeal unless an application to extend the time
within which an appeal may be made is granted. Having failed to comply with the
requirements of subsection 167(2) of the Act in the document that was
filed by the Appellant in the Registry of this Court on March 6, 2009, this
document cannot be considered to be a valid application to extend the time within
which an appeal may be made to this Court. The Appellant’s appeal in relation
to the reassessment of her tax liability for 2005 is, therefore, not a valid
appeal to this Court nor is the document filed on March 6, 2009 a valid
application to extend the time within which an appeal may be made to this Court.
[11]
As a result the
Respondent’s motion to quash the Appellant’s appeal in relation to the
reassessment of her 2005 taxation year is allowed, without costs, and this
appeal is quashed.
Signed at Halifax, Nova Scotia, this 19th day of July, 2010.
“Wyman W. Webb”
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