Citation: 2010 TCC 452
Date: 20100830
Docket: 2009-1199(IT)APP
BETWEEN:
DAVID AUSTIN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
An application for an order
granting an extension of time to institute an appeal under the Income Tax
Act was filed in this Court on December 31, 2008. The issue appears to
relate to the deduction of travel expenses, but this is not entirely clear from
the documentation filed with the application.
[2]
Approximately one week before this
hearing, the applicant, David Austin, was informed by counsel for the
respondent that the deduction for travel expenses had been allowed, but that an
application for a related GST rebate had been denied. It appears that both
items were dealt with in a notice of assessment for the 2005 taxation year
dated November 6, 2006.
[3]
At the hearing, Mr. Austin stated
that he no longer wished to appeal the deduction of the travel expenses, but
that he wanted to proceed in relation to the denial of the GST rebate. The
amount at issue is $2,183.08.
[4]
By way of background, this
application was filed further to a letter from the Canada Revenue Agency (CRA)
dated September 18, 2008. In the letter, Mr. Austin was advised that if he
wishes to appeal from assessments under the Income Tax Act and the Excise
Tax Act, he must file an application to extend time by December 31, 2008. Mr.
Austin responded with this application.
[5]
Based on the limited information
before me, it appears that Mr. Austin has misinterpreted this correspondence. The
CRA letter appears to relate to different assessments altogether. I understand
that Mr. Austin has retained a law firm in connection with these assessments
and that valid appeals have been instituted with respect to them.
[6]
This is not directly relevant to
this application, but it does explain why this application is being made so
long after the assessment was issued.
[7]
Counsel for the respondent, Mr.
Neilson, stated that he had not anticipated that this hearing would relate to
the GST rebate, and as a result he was not familiar with the relevant statutory
provisions. Neither party sought an adjournment, however, and I agreed that
this was appropriate in the circumstances.
[8]
For purposes of this decision, I
have assumed that the denial of GST rebate was by way of an assessment under the
Excise Tax Act.
[9]
The problem with granting an
extension of time to appeal the denial of the GST rebate is that Mr. Austin has
not filed a notice of objection and it is now too late to do so. It is also too
late to apply for an extension of time to file a notice of objection (sections
301-306, Excise Tax Act).
[10]
Mr. Austin submits that an
extension of time is appropriate because the notice of assessment was sent to
the wrong address, since it was mailed shortly after he had moved from Delta
B.C. to Fort St. John, B. C. Mr. Austin explained that, although
he had not seen the notice of assessment in 2006, he had been informed by the
CRA that the travel expenses were under review in a letter dated October 17,
2006.
[11]
If the notice of assessment was in
fact mailed to the wrong address, Mr. Austin would still be able to file a
notice of objection. The recent communication of the notice of assessment would
be sufficient communication: Grunwald v. The Queen, 2005 FCA 421, 2006
DTC 6016; Universal Aide Society v. The Queen, 2009 FCA 107, 2009 DTC
5084.
[12]
I am unable to agree with Mr.
Austin’s submission, however. In my view, the notice of assessment was mailed
to the proper address. First, it is well established that a notice of
assessment is validly sent if it has been mailed to the taxpayer. It is not
necessary that the notice actually be received.
[13]
Second, a notice of assessment
will be validly sent if it is mailed to the latest address which the CRA has
been provided with. In this case, it appears that the notice of assessment was
mailed on or around November 6, 2006 to the address in Delta B.C. that was
given by the taxpayer in the income tax return dated June 15, 2006.
[14]
Mr. Austin testified that he began
his move to Fort St. John around July 2006, and he acknowledged that no
specific change of address notification was provided to the CRA. He submits,
however, that the CRA knew about his change of residence because CRA officials
dealing with another tax matter were aware of it. In response to my question as
to whether he had support for this, Mr. Austin provided a letter from the CRA
addressed to his wholly-owned corporation dated November 7, 2006. It was
addressed to a post office box in Delta, and not the address that was in Mr.
Austin’s income tax return.
[15]
I am not persuaded by this
submission. It may have been that the CRA were advised that the address for the
corporation had changed but the evidence is not sufficient to establish that
the CRA were advised that Mr. Austin’s address had changed as well.
[16]
I would also note that there was correspondence
from the CRA concerning this matter that was mailed on October 17, 2006 to the
old address. Mr. Austin acknowledges that he received this letter, which asks
for information, and he states that he did not reply to it. The notice of assessment
which disallowed the GST rebate was issued about three weeks later. In the
circumstances, the CRA was correct to send the notice of assessment to the
mailing address in the income tax return.
[17]
Based on the limited evidence before
me, I would conclude that the notice of assessment was sent to the correct
address.
[18]
Finally, I would comment about an
alternative submission that was made by Mr. Austin at the hearing. He suggested
that the notice of assessment may not have been mailed at all and he submits
that the respondent failed to prove that it was.
[19]
I might agree with this submission
if this alternative issue had clearly been raised in the application. It was
not, however, and it is too late for the applicant to expect the respondent to
provide proof of mailing at the hearing. In the circumstances, the respondent cannot
be expected to have provided further evidence on this point.
[20]
I conclude that a notice of
assessment relating to the GST rebate was validly made on November 6, 2006. The
application to extend time to institute appeals under the Income Tax Act
and the Excise Tax Act will be dismissed.
[21]
Each party shall bear their own
costs.
Signed at Ottawa, Canada this 30th day of August 2010.
“J. M. Woods”
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