Docket: 2009-3711(IT)APP
BETWEEN:
ZENON TARAS BOYKO,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on April 6, 2010 at Winnipeg, Manitoba
Before: The Honourable
Justice Steven K. D'Arcy
Appearances:
|
For the Applicant:
|
The
Applicant himself
|
|
Counsel for the Respondent:
|
Larissa Benham
|
____________________________________________________________________
ORDER
Upon application for an Order extending the time within
which a notice of objection may be served with respect to the reassessment made
under the Income Tax Act for the 2005 taxation year;
AND UPON reading the materials filed and hearing from
the Applicant and counsel for the Respondent;
THIS COURT ORDERS that the application is dismissed.
There is no order as to costs.
Signed at Calgary, Alberta,
this 19th day of October 2010.
“S. D’Arcy”
Citation: 2010 TCC 534
Date: 20101019
Docket: 2009-3711(IT)APP
BETWEEN:
ZENON TARAS BOYKO,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
D'Arcy J.
[1]
The Applicant has
brought an application, pursuant to section 166.2 of the Income Tax Act
(the "Act"), for an order extending the time for the filing of
a notice of objection in respect of his 2005 taxation year.
Background
[2]
The Minister of
National Revenue (the “Minister”) reassessed the Applicant for the 2005
taxation year by notice of assessment dated September 18, 2008.
[3]
The Applicant filed
with the Court on December 4, 2009, an application made pursuant to section
166.2 of the Act, to have the Minister extend the time for the filing of
his notice of objection. Attached to the application was a notice of objection
in respect of the Applicant's 2005 taxation year. In the notice of objection
the Applicant challenges the Minister's denial of "charitable tax
credits" that he claimed in his 2005 taxation year.
[4]
It was clear from the
testimony of the Applicant and the affidavit filed by the Respondent that the Applicant
never filed a notice of objection for his 2005 taxation year with the Canada
Revenue Agency (the "CRA"). The Applicant testified that the CRA
reassessed him in respect of the same charitable donation issue for his 2003,
2004 and 2006 taxation years. He filed notices of objection in respect of each
of these taxation years.
[5]
The Applicant testified
that he was not aware of the reassessment for his 2005 taxation year until
sometime in the later half of 2009. Once he became aware of the reassessment,
he sought advice from the charity who had issued the charitable receipts. The
charity suggested he file an application with the Court for an extension of the
time for the filing of his notice of objection.
The Law
[6]
Subsection 166.2(1) of
the Act reads as follows:
166.2(1) A taxpayer who has made an application under subsection
166.1 may apply to the Tax Court of Canada to have the application granted
after either
(a) the Minister has refused the application, or
(b) 90 days have elapsed after service of the
application under subsection 166.1(1) and the Minister has not notified the
taxpayer of the Minister's decision,
but no application under this section may be made after the
expiration of 90 days after the day on which notification of the decision was
mailed to the taxpayer.
[7]
As this Court noted in McKernan
vs R,
a taxpayer may not apply to the Court to extend the time for serving a notice
of objection unless that taxpayer has first made an application to the Minister
under section 166.1 for an extension of time.
[8]
The problem in the current
application is that the Applicant did not file an application with the Minister under section 166.1 for
an extension of time to file the notice of objection.
[9]
During the hearing, I raised with
counsel for the Respondent the issue of whether the Minister could accept the
application filed with the Court as an application filed under section 166.1.
Counsel noted that it was the Respondent's position that an application filed
with the Court should not be considered to be filed with the Minister.
[10]
Based upon my review of the
relevant provisions, I agree with counsel for the Respondent.
[11]
Sections 166.1 and 166.2 provide a
statutory framework for an application for an extension of the time for the
filing of a notice of objection. These provisions provide that the application
is first made to the Minister and then, after either 90 days or the
refusal by the Minister to grant the application, the taxpayer has the right to
bring an application before this Court.
[12]
Subsection 166.1(3) provides that
an application under subsection 166.1(1) shall be addressed to the Chief of
Appeals in a District Office or a Taxation Centre of the CRA and delivered or
mailed to that Office or Centre, accompanied by a copy of the notice of
objection.
[13]
The application filed by the
Applicant was addressed to the registrar of the Tax Court of Canada and was
delivered to the Court. I cannot construe this as an application made to the
Chief of Appeals of the CRA.
[14]
Further, the Applicant testified
that he believed, at the time he filed the application, that the application
should be filed with the Court. In other words, he intended to file the
application with the Court. At no time did he intend to file the application
with the Chief of Appeals of the CRA.
[15]
For the foregoing reasons, the
application is denied. There will be no order with respect to costs. I
recognize that my decision leads to a harsh result for the Applicant; however,
I am bound by the provisions of the Act.
Signed at
Calgary, Alberta, this 19th day of October 2010.
“S. D’Arcy”
CITATION: 2010 TCC 534
COURT FILE NO.: 2009-3711(IT)APP
STYLE OF CAUSE: ZENON TARAS BOYKO and
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Winnipeg,
Manitoba
DATE OF HEARING: April 6, 2010
REASONS FOR ORDER
BY: The Honourable Justice Steven K. D'Arcy
DATE OF ORDER: October 19, 2010
APPEARANCES:
|
For the
Applicant:
|
The Applicant himself
|
|
Counsel for the
Respondent:
|
Larissa Benham
|
COUNSEL OF RECORD:
For the Applicant:
Name: N/A
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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