Citation: 2009 TCC 573
Date: 20091117
Docket: 2009-2117(IT)APP
BETWEEN:
SIMON ROY,
Applicant,
and
HER MAJESTY THE QUEEN
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Angers J.
[1]
This is an application
for an extension of time under section 167 of the Income Tax Act (the
Act) to allow the applicant to appeal to this Court from the decision rendered
by the Minister of National Revenue (the "Minister") on December 11, 2007,
for the 2000, 2001 and 2002 taxation years.
[2]
The Minister sent the
applicant notices of reassessment for the 2000 and 2001 taxation years on
January 4, 2006, and a notice of assessment for the 2002 taxation year on
January 6, 2002. The applicant objected to the reassessments and the assessment
and filed his objection to the Minister on March 24, 2006.
[3]
According to an
affidavit by Teresa Masone, appeals officer for the Canada Revenue Agency (the
"CRA"), she reviewed the applicant's grounds for objection between
October 18, 2007, and December 11, 2007. On December 11, 2007, Ms. Masone
sent the applicant a notice of confirmation regarding the assessments for the
2000, 2001 and 2002 taxation years by registered mail to the address the
applicant provided to the CRA. A copy of the record of the applicant's mailing
addresses was submitted to evidence (Exhibit I-1) and it includes the
applicant's address for the period of September 20, 2007, to May 12, 2009,
which corresponds to the one Ms. Masone used to send the notices of
confirmation by registered mail.
[4]
On January 10, 2008,
the registered letter in question was returned to the CRA marked
"unclaimed."
[5]
As for the applicant,
he testified on the issues he had to overcome, particularly in the fall of
2007, following a series of events I should not list because his movements must
remain confidential. I will simply state that the applicant had to move many
times, including a first time on September 1, 2007 (Exhibit R-3). On November
5, 2007, the applicant went to a Canada Post office with a notary and signed a
change of address notice (Exhibit R-2) to have his mail sent to him for a
period of around six months. However, this change of address notice only
applied to his numbered company and not to him personally. Exhibit R-4 is a T-5
for 2008, and indicates a new address for the applicant, but it is not
considered a change of address with the CRA. Even if the document mentions the
CRA, it is a document established by a placement company and not the CRA.
[6]
According to the
applicant, he informed Revenue Québec of his change of address in December 2007
and he thought that Revenue Canada would be informed at the same time. In
support of this claim, the applicant noted that the change of address forms
were marked Québec and Canada.
[7]
The applicant had a
conversation with his tax specialist in April 2008 for an update on his tax
affairs. He then went to Europe for two months in the summer of 2008 and his
notary collected his mail at his old address. It was only in March 2009 that he
learned things were not going well with his tax affairs. He contacted a Revenue
Québec representative and had an appointment in May. He was told to address the
CRA and then this Court, which led to this application being filed on June 25,
2009.
[8]
Under
subsection 165(3) of the Act, upon reception of a notice of objection, the
Minister must review the reassessment with care, he vacates, confirms or amends
it or establishes a reassessment and then advises the taxpayer of his decision
in writing. There is no requirement that the Minister must notify the taxpayer
of his decision personally or provide evidence that the taxpayer has received
it. As the Federal Court of Appeal stated, per Stone, J. in Bowen v. Canada,
[1991] F.C.J. No. 1054, the Minister used the address the taxpayer provided and
he is not required to make further inquiries. He added: "Moreover, a
requirement for the receipt of the notification would
be difficult if not totally unworkable from an administrative standpoint."
[9]
In this case, the
evidence presented shows that the Minister did what was required pursuant to
subsection 165(3) of the Act and it was not due to an omission on his part
that the applicant was unable to file an appeal within the prescribed time.
[10]
For the Court to allow
such an application, the applicant must meet the requirements at
subsections 167(1) and 167(5) of the Act:
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.
167(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.
[11]
The application must
therefore be presented in the year following the expiry of the time limit to
appeal under section 169 of the Act (90 days). However, in this case, the time
limit ended on March 10, 2008, and the year in which the taxpayer could have
made an application ended on March 10, 2009. The application for an extension
was made on June 25, 2009, outside the time limit.
[12]
The case law tells us
that this is a strict time limit that deprives Court of any discretionary power
when the application is filed outside the one-year time limit provided under
paragraph 167(5)(a) of the Act.
[13]
Even if the applicant's
particular case warrants the Court's sympathy and even though he took steps to
communicate his changes of address, he still did not make sufficient efforts to
inform the CRA of his new mailing address.
[14]
Although the applicant
may have acted with some diligence, in this case the error was not that the
taxpayer believed, reasonably but mistakenly, that he validly instituted an
appeal as was the case in Hickerty v. R., [2007] T.C.J. No. 312 or Cheam
Tours Ltd. v. Minister of National Revenue, [2008] 4 C.T.C. 2001.
[15]
For all these reasons,
I cannot allow the application.
Signed at Montréal, Quebec,
this 17th day of November 2009.
"François Angers"
Translation
certified true
on this 8th day of
December 2009.
Elizabeth Tan,
Translator
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