Citation: 2009TCC354
Date: 20090708
Docket: 2009-823(IT)APP
BETWEEN:
ROBERT J. SCHNEIDMILLER,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Beaubier, D.J.
[1]
This is an application
by the taxpayer, Mr. Schneidmiller, pursuant to Section 166.2 of the Income
Tax Act (the “Act”) to extend the time in which he may file a Notice of
Objection to Reassessments for his 2002, 2003 and 2004 taxation years.
[2]
The application was
heard in Regina Saskatchewan on June 26, 2009. The Applicant was the
only witness. He resides in Gull Lake, about 300 km west of Regina, a land of
open range, where big farms meet big ranches and the deer and the antelope play
and the skies are not cloudy all day.
[3]
The chronology of this
matter is as follows:
1.
27 April, 2006 Notices of Reassessment of the Applicant
for 2002, 2003 and 2004 were issued and mailed to the Applicant (Exhibits R-4,
R-5 an R-6).
2.
He telephoned Canada
Revenue Agency (“CRA”) in Regina and stated that the reassessments listed
his gross, not net income and were wrong and said that he had to speak to
someone and correct them. CRA in Regina sent him “T1 Adjustment Request” forms
which he received on May 3, 2006.
3.
12 May, 2006 CRA in Surrey,
B.C. received these forms duly completed by the Applicant. (Exhibit A-1, letter
July 4, 2006). CRA forwarded these to Winnipeg, Manitoba.
Winnipeg CRA confirmed this on August 3, 2006 (Exhibit A-1).
4.
7 November, 2007 (one and one half years later) CRA
Surrey acknowledged an inquiry by the Applicant on 26 October 2007 and stated
that they had forwarded the request to CRA’s Regina
office, but they couldn’t locate it. CRA asked him to resubmit it to Regina (Exhibit A-1).
5.
15 November, 2007 The Applicant refiled the forms.
6.
31 January, 2008 The Applicant telephoned Regina CRA and as
a result of the conversation they sent him Notice of Objection forms (Exhibit
A-1 – CRA letter January 31, 2008).
7.
7 February, 2008 The Applicant mailed the Notice of
Objection forms to CRA, Regina. (Exhibit A-1, CRA letter March 11, 2008
and Exhibits R-1, R-2 and R-3).
8.
12 March 2008 CRA advised the Applicant that he was too
late to object to the Notices of Reassessment dated 27 April 2006. (Exhibit
A-1, CRA letter 11 March 2008).
[4]
CRA confirmed this on
January 26, 2009 and this application was filed with the Tax Court of Canada on
13 March 2009 by letter dated March 6, 2009.
[5]
Respondent’s Counsel
relied on Armstrong v. The Queen 2006 DTC 6310 in which paragraph 8
describes the concept of an “amended return.” It reads:
[8]
An amended
return for a taxation year that has already been the subject of a notice of
assessment does not trigger the Minister's obligation to assess with all due
dispatch (subsection 152(1) of the Income Tax Act), nor does it start
anew any of the statutory limitation periods that commence when an income tax
return for a particular year is filed and then assessed. An amended income tax
return is simply a request that the Minister reassess for that year.
[6]
However there is no
evidence that Mr. Schneidmiller filed any amended returns.
[7]
Rather, the evidence is
that he found the reassessments of 27 April 2006 objectionable and telephoned
CRA in Regina to request a meeting with someone to talk
about his position that the reassessments described gross, not net, income.
[8]
CRA Regina sent him
“Request” forms to write out his objections and he completed these and returned
them to CRA Surrey on 12 May 2006. Thereupon, CRA Surrey, British Columbia to
CRA Winnipeg, Manitoba to CRA Regina, Saskatchewan lost these documents as
confirmed on November 7, 2007.
[9]
An “Objection” or a
“Notice of Objection” is not defined or described in either Section 165 or 248
of the Act. Nor should it be. It is a matter of substance, not form. The
Shorter Oxford Dictionary, 3rd Edition, defines “Objection” as:
“The action of starting something in opposition to a person or
thing… an adverse reason, argument or contention. Now often merely: An
expression, or feeling, of disapproval, disagreement or dislike…”
[10]
That is what the
Applicant did when he sent his request respecting the 2002, 2003 and 2004
Reassessments of 27 April 2006 to CRA which they received on 12 May 2006. They
constituted timely Notices of Objection.
[11]
As a result, the
Applicant does not need an extension of time in which to file Notices of
Objection. He has done that.
[12]
To this date, CRA has
not confirmed its reassessments. However, more than 90 days have elapsed since
May 12, 2006. Therefore the Applicant now has the right to appeal these
reassessments to the Tax Court of Canada pursuant to subsection 169(1) of Act
which reads as follows:
169. (1) 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.
[13]
In these circumstances,
this Application is dismissed because it is not necessary. Mr. Schneidmiller
has the right to appeal these reassessments to the Tax Court of Canada now.
Signed at Saskatoon, Saskatchewan, this 10th day of July 2009.
“D.W. Beaubier”
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