Citation: 2007TCC709
Date: 20071204
Docket: 2007-3324(EI)
BETWEEN:
CARLOS CARVALHO,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
REASONS FOR ORDER
Tardif J.
[1] This is a motion to
dismiss on the ground that the Notice of Appeal is void on its face.
[2] The grounds cited
in support of the motion are as follows:
[TRANSLATION]
1. On
April 11, 2002, the Minister of National Revenue ("the Minister")
issued a notice of assessment to the Appellant under section 227.1 of the
I.T.A. and under the E.I.A. in the amount of $39,136.05, representing unpaid
deductions, interest and penalties payable by Groupe Carsil Inc.
2. On April 2, 2007, the Appellant filed a
notice of objection to the notice of assessment and a request for an extension
of time.
3. On
May 2, 2007, the Respondent rejected the Appellant’s notice of objection and
request for an extension of time because the request was not made within one
year after the expiration of the time otherwise limited for filing a notice of
objection, as required by paragraph 166.1(7)(a) of the I.T.A.
4. No
decision was made by the Respondent under subsection 93(3) of the E.I.A.
[3] In order for the Respondent
to obtain the order he was seeking, the Respondent had to prove on a balance of
probabilities that the notice of assessment was sent to the Appellant, although
the Act does not require that the Minister deliver a notice by special or
registered mail, the usual procedure of delivery by regular mail being
sufficient.
[4] The Appellant
argues that the Notice of Appeal was filed in accordance with the provisions of
the Act, in that, he says, he never received anything relating to the
assessment made in his regard. In other words, he submits that he acted within
the time allowed, which began to run on the date on which he first had
knowledge of the assessment. The basis of the Appellant’s arguments is that he
never received anything relating to the assessment, and, moreover, that no one
informed him of any assessment.
[5] The Respondent adduced
essentially circumstantial evidence that offered probative and probable proof
of the attention given to the case and the work done on it, which cannot be doubted.
[6] The person
responsible for the case, Dany Guay, explained the work he did, but also,
and most importantly, the efforts made to ensure that the case was handled in a
such a way as to resolve it.
[7] There are three
scenarios before the Court, arising from the Appellant’s arguments. The first
is that the work was done, but there was never any follow‑up in terms of
communication. The first scenario must be rejected, because Mr. Guay reported
conversations he had with one or more people close to the Appellant. Given the
practice followed, which involves systematically recording in writing
everything that is done in a case, the reasonable conclusion is that the
testimony explaining the efforts made carries obvious credibility or weight.
[8] The second scenario
is that the material sent was addressed to the wrong place, or addressed
incorrectly. That scenario is the most reasonable, and in fact it is possible
that the various items mailed, including the notice of assessment, were
addressed to a place where the Appellant did not live. Were the person or
persons who received the item or items mailed friends or family of the Appellant,
and did they deliver the notices to him or inform him of the content? Those are
all questions to which it is not essential to have an answer or answers. In our
tax system, where the rule is self-assessment, it is essential, for the smooth
operation of a system of this nature, that the taxpayer or taxpayers ensure
that their correct address is known to the tax authorities at all times,
failing which they must accept responsibility for the consequences of non-communication
or incorrect communication.
[9] In the case at bar,
there was not just one item mailed, but several. I strongly doubt that the Appellant
did not receive any of them. If that is so, he alone is responsible for the
situation.
[10] A third scenario is
possible, in which the Appellant saw the notice or notices, or the people who
received them informed him that the notice or notices in question had been
received, and he deliberately and expressly chose to ignore them, counting on
disputing his receipt of them.
[11] None of the three
scenarios can be used by the Appellant to avoid the obligation he had to leave
an address where any notice or correspondence that the Respondent might wish to
send him could be sent.
[12] In this regard, not
only did the Appellant do absolutely nothing to show that he had such an
address at the relevant time, but quite the opposite: his testimony was
confused, evasive and incoherent, and he systematically refused to provide
details in response to the questions put to him in that regard.
[13] What is more,
counsel for the Respondent had given his counterpart notice in advance to
provide him with the various dates when the Appellant was incarcerated or
living in halfway houses before he was given full parole. The Appellant ignored
the request, advancing a whole series of far-fetched excuses.
[14 Not only did he
refuse to confirm certain facts with respect to a possible address or addresses,
but he deliberately tried to suggest that he had no real address, and if he did
have one, he did not remember it.
[15 Moreover, I find
the Appellant’s testimony to be without credibility, for the following reasons:
·
although
he could have provided exact dates, he did not do so;
·
although
he could have called people to support or verify some of his statements, he did
not do so; and
·
his
testimony was confused and incoherent.
[16] The Appellant gave
various excuses, each as far-fetched as the others, for refusing to answer
specific questions.
[17] He even went so far
as to criticize the answers given by the people who worked on the case for
being unclear, suggesting that these were probably lies or things made up out
of whole cloth, because the testimony was too specific and clear to be true.
[18] Lastly, it is also
very interesting to note the evidence that he refused to accept mail from the Respondent
within the weeks preceding the hearing, even though the mail had been sent to
the address given on his Notice of Appeal and the address that he himself gave
when he was sworn. This fact is subsequent to the facts in issue, I agree, but
it is still a fact that supports the interpretation of the facts that are
themselves relevant to the period in issue in this case.
[19] On a balance of
probabilities, it seemed more probable to me that the mail was in fact
addressed and sent to the Appellant at the addresses provided, which, moreover,
were to all appearances valid.
[20] When all of this was
brought to the Appellant’s attention, he claimed he had never received them,
obviously believing that this would be to his advantage. The explanation
provided runs counter to the preponderance of the evidence, which was that the
notices of assessment were correctly addressed and sent to the address
available, to which he had access. In any event, the Appellant had an
obligation to make his address known and the evidence is that he did no such
thing.
[21] For all these
reasons, the motion is allowed and the decision to reject the request for an
extension of time is confirmed. In addition, the Notice of Appeal is struck out
on the ground that it is without any basis.
Signed at Ottawa, Canada, this
4th day of December 2007.
“Alain Tardif”
Translation certified true
on this 23rd day of January 2008.
Brian McCordick, Translator
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