Docket: 2009-716(IT)APP
BETWEEN:
RICHARD HAMELIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Application
heard on June 12, 2009, at Ottawa,
Canada.
Before: The Honourable Justice Lucie
Lamarre
Appearances:
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For the appellant:
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The appellant himself
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|
|
|
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Counsel for the respondent:
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Sara Chaudhary
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____________________________________________________________________
JUDGMENT
The application for
an extension of time filed on January 20, 2009, to appeal the Canada Revenue
Agency's decision dated October 14, 2008, upholding the penalties and interest
resulting from the assessment of March 21, 2002, is dismissed on the ground of
nullity in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 17th day of June 2009.
"Lucie Lamarre"
Citation: 2009 TCC 322
Date: 20090617
Docket: 2009-716(IT)APP
BETWEEN:
RICHARD HAMELIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR JUDGMENT
Lamarre J.
[1]
The
appellant was reassessed for the 1999 taxation year on March 21, 2002. Through the
reassessment, additional income of $33,900 was added to the appellant's income.
This additional income was related to the money that the appellant had
withdrawn from his registered retirement savings plan to make inadmissible
investments. The Minister of National Revenue
(the Minister) also imposed on the appellant a late filing penalty for his tax
return for the 1999 taxation year as well as interest.
[2]
The
appellant wants to challenge only the penalties and interest. The problem is
that he did not object to the reassessment, or at least there is no evidence
that he did, within the 90-day period prescribed in section 165 of the Income
Tax Act (ITA).
[3]
That period
ended on June 19, 2002. There is also no evidence on the record that the appellant
applied to the Minister to extend the time for serving the notice of objection
within the year following the end of the period allotted for serving a notice
of objection, that is, before June 19, 2003, as prescribed in section 166.1 of
the ITA.
[4]
The
appellant submitted a letter to the Canada Revenue Agency (CRA) on June 26,
2008, requesting that it cancel the penalty for late filing and interest on
arrears, pursuant to [Translation]
"relief provisions for taxpayers" (Exhibit I-3). From what I
understand, the appellant made that application under subsection 220(3.1)
of the ITA. On October 14, 2008, the CRA refused
the appellant's application and upheld the penalties for late filing and
interest (Exhibit I‑3).
[5]
The letter
of refusal informed the appellant that, if he believed that the CRA had not
exercised its discretion fairly and reasonably, he could make a written request
to the director of a tax centre or tax services office to undertake a second
independent review of the impugned decision. Instead of doing so, the appellant
took that letter to the registry of this Court, where he was unfortunately
informed that he was two days late to appeal it. He was therefore advised to
apply to this Court for an extension of time. Thus, on January 20, 2009, the
appellant applied to this Court for an extension of time to appeal the CRA's
decision dated October 14, 2008. He also took
the precaution of sending a copy of his application to a CRA tax services
office.
[6]
On March 5,
2009, the CRA wrote to the appellant to inform him that the letter he had sent
in January 2009 could not be accepted as a valid objection (Exhibit I-4). That response is
somewhat strange and would suggest that the director of the Tax Services Office
did not consider the appellant's application to be a request to review the
letter of October 14, 2008.
[7]
This Court
is hearing the application for an extension of time filed with this Court on
January 20, 2009, to appeal the CRA's decision of October 14, 2008.
[8]
Clearly,
this is not the proper forum, and I have no jurisdiction to hear the
appellant’s application. It is unfortunate that the registry of this Court
advised the appellant to apply for an extension of time before this Court. This Court has
no jurisdiction to review a CRA decision when a taxpayer believes that the CRA
did not exercise its discretion fairly and equitably under subsection 220(3.1)
of the ITA.
[9]
The letter
of October 14, 2008, (Exhibit I-3) did inform the appellant that he could
request that the decision in question be reviewed by the director of a tax
centre or tax services office.
That is the first level of appeal. If the appellant was still dissatisfied with the second
decision, he could apply for a review of that decision to the Federal Court of
Canada. In my view, the decision of
March 5, 2009, (Exhibit I‑4) cannot be considered as a
review of the CRA's decision of October 14, 2008, since it does not
discuss the letter at all. It is incumbent
upon the appellant to verify whether the letter he sent to the CRA in
January 2009 can be considered as a request to review the letter of
October 14, 2008, and if not, then whether he is still within the prescribed
time limit to appeal to the director of a tax centre or tax services office,
and if that is not the case, then whether it is possible to apply for an
extension of time.
[10]
As for the
application before this Court, it must be dismissed on the ground of nullity.
Signed at Ottawa, Canada, this 17th day of June 2009.
"Lucie Lamarre"
on this 24th day
of July 2009
Margarita
Gorbounova, Translator
CITATION: 2009
TCC 322
COURT FILE NO.: 2009-716(IT)APP
STYLE OF CAUSE: Richard
Hamelin and Her Majesty the Queen
PLACE OF HEARING: Ottawa, Canada
DATE OF HEARING: June 12, 2009
REASONS FOR
JUDGMENT BY: The Honourable Justice Lucie Lamarre
DATE OF JUDGMENT: June
17, 2009
APPEARANCES:
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For the appellant:
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The appellant himself
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Counsel for the respondent:
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Sara Chaudhary
|
COUNSEL OF RECORD:
For the appellant:
Name:
Firm:
For the respondent: John H. Sims, Q.C.
Deputy
Attorney General of Canada
Ottawa, Canada
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