Citation: 2010 TCC 393
Date: 20100721
Docket: 2010-934(IT)APP
BETWEEN:
GARRY MOON,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Lamarre J.
[1]
The applicant is
requesting an extension of the time for filing notices of appeal with respect
to a Notice of Assessment dated December 1, 2003, for the 2001 taxation year
and Notices of Reassessment dated October 5, 2006, for the 2002 and 2003
taxation years.
[2]
The Minister opposes
the application for the reasons set out in paragraph 10 of the Reply to an
Application for an Extension of Time (the “Reply”):
10. the Respondent opposes the Application for an extension of
time within which to file a Notice of Appeal in respect of the 2001, 2002 and
2003 taxation years for the following reasons:
a) the Applicant did not comply with the statutory condition
precedent required by subsection 167(5) of the Act, in that he
did not make an application to file an extension of time to file and appeal to
the Tax Court of Canada within the one year time limited by section 169 of the Act,
for the 2001, 2002 and 2003 taxation years; and
b) the Applicant failed to comply with the statutory
condition precedent required by subsection 169(1) of the Act, in
that he did not make an appeal to the Tax Court of Canada within 90 days of the
Confirmation date for the 2001, 2002 and 2003 taxation years.
[3]
The facts relied upon
by the Minister are found in paragraphs 1 to 9 of the Reply, which read as
follows:
1. the Minister assessed the Applicant for the 2001 taxation
year by Notice of Assessment dated December 1, 2003 and for the 2002 and 2003
taxation years by Notices of Assessment dated April 13, 2006.
2. the Applicant served on the Minister on June 13, 2006, a
Notice of Objection for the 2001, 2002 and 2003 taxation years.
3. the Minister confirmed the assessment for the 2001
taxation year by letter of confirmation dated October 3, 2006.
4. the Minister reassessed the Applicant for the 2002 and
2003 taxation years by Notices of Reassessment dated October 5, 2006.
5. the Applicant served on the Minister on October 19, 2006,
a Notice of Objection for the 2002 and 2003 taxation years.
6. the Minister confirmed the reassessments for the 2002 and
2003 taxation years by letter of confirmation dated January 18, 2008.
7. the Applicant did not file a Notice of Appeal for the
2001 taxation year with the Tax Court of Canada on or before January 1, 2007,
with is [sic] 90 days after the Minister issued the letter of Confirmation
pursuant to subsection 169(1) of the Income Tax Act (the “Act”).
8. Furthermore, the Applicant did not file a Notice of
Appeal for the 2002 and 2003 taxation years with the Tax Court of Canada on or
before April 18, 2008, which is 90 days after the Minister issued the letter of
Confirmation pursuant to subsection 169(1) of the Income Tax Act (the
“Act”).
9. the Applicant filed an extension of time within which to
file a Notice of Appeal for the 2001, 2002 and 2003 taxation years with this
Honourable Court on March 29, 2010.
[4]
The applicant admitted
that he did not contact either the Tax Court of Canada or the Canada Revenue
Agency (“CRA”) between January 18, 2008 (the date of the confirmation of the reassessments
for 2002 and 2003) and April 18, 2008 (the expiry date of the 90-day
period for instituting an appeal), and that he did not file in timely fashion a
notice of appeal for each of the taxation years at issue. He said that he
was in contact with a certain Mr. Robillard from the CRA in August 2008
and that he was advised to speak to someone from this Court. The Applicant
did speak to someone at the Registry of this Court in Toronto and forwarded the
letter he had previously sent to Mr. Robillard, which is dated August 7,
2008 (Exhibit A‑1), to the Registry of this Court in Toronto on August 25, 2008. This letter did not mention
that he was requesting an extension of the time for filing a notice of appeal,
nor did it indicate the grounds for appeal, except to say that he was asking
for fairness.
[5]
The applicant heard
nothing from the Court thereafter, and it was only in July 2009 that he
drove to Toronto to speak to someone at the Court, which was
long after the one‑year limit had expired.
[6]
The applicant explains
that he was not aware of the time limits and that is why he did not file notices
of appeal or the application for an extension of time at an earlier date.
[7]
Subsections 167(1) and
(5) of the Income Tax Act (“ITA”) read as follows:
167. (1) Extension
of time to appeal – 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.
. .
.
(5) 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.
[8]
Subsection 169(1) of
the ITA reads as follows:
169. (1)
Appeal – 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.
[9]
The applicant had to
show that he made his application for an extension of time within one year
after the expiration of the time for filing a notice of appeal, that is, before
April 18, 2009 for the 2002 and 2003 taxation years, and before January 1, 2008
for the 2001 taxation year.
[10]
I find that the letter
forwarded to the Tax Court of Canada in August 2008 is not an application for
an extension of time as nowhere does the applicant indicate the reasons for
which he was unable to file his appeals on time. Furthermore, the applicant
asks for fairness but does not actually indicate any grounds for challenging
the validity of the assessments.
[11]
Once it has been found
that the application for an extension of time was not made within the one-year
limit imposed by paragraph 167(5)(a) of the ITA, this Court has
no discretion to extend that time and the question whether it would be just and
equitable to grant an extension of time may not be raised (see Minister of
National Revenue v. Minuteman Press of Canada Co., [1988] 1 C.T.C. 440,
88 DTC 6278 (F.C.A.), and Lamothe v. The Queen,
2002 DTC 1559 (T.C.C.).
[12]
For these reasons, I am
not in a position to be able to extend the time for instituting an appeal against
the assessment and the reassessments issued against the applicant for the 2001,
2002 and 2003 taxation years.
[13]
The application is
therefore dismissed.
Signed at Ottawa, Canada, this 21st day of July 2010.
“Lucie Lamarre”
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