Citation: 2007TCC567
Date: 20070928
Docket: 2007-3052(IT)APP
BETWEEN:
DENIS F. CHARETTE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR ORDER
Lamarre Proulx J.
[1] This is an
application for an extension of the time in which the Applicant can file an
appeal in this Court with respect to the 1999 taxation year.
[2] The facts of the
instant case are set out in paragraphs 1 to 7 of the Reply to the Application
for an Extension of Time:
[TRANSLATION]
1. On May 19,
2004, the Minister of National Revenue (hereinafter "the Minister")
sent the Applicant a notice of assessment concerning the 1999 taxation year.
2. On or about August 16, 2004, the Applicant notified the Minister of his
objection to the assessment dated May 19, 2004, concerning the 1999
taxation year.
3. By
registered letter mailed on November 2, 2006, the Minister notified the Applicant that he had confirmed the assessment
dated May 19, 2004, concerning the 1999 taxation year.
4. On January 25, 2007, the Minister received from the Post Office, marked
"unclaimed", the notice of assessment that he had sent by
registered letter on November 2, 2006.
5. On January 29, 2007, the Minister re-sent to the Applicant, this time
by regular mail, the notice of assessment dated November 2, 2006, informing the
Applicant that he had 90 days in which to file an appeal, since November 2, 2006, was the correct notice date.
6. The Applicant
did not file a timely appeal with the Tax Court of Canada in respect of the notice of assessment of
May 19, 2004, concerning the 1999 taxation year, because the time
allotted by subsection 169(1) of the Income Tax Act (hereinafter
"the Act") expired on January 31, 2007.
7. On July 3,
2007, the Applicant filed an application with the Tax Court of Canada to extend
the time in which to file an appeal from the notice of assessment dated May 19, 2004, concerning the 1999 taxation year.
[3] A sworn declaration
of a Canada Revenue Agency litigation officer was tendered on consent as
Exhibit I‑1. The declaration confirms that the notification of
confirmation was sent to the Applicant by registered mail on
November 2, 2006. It was also sent by regular mail, on the same
date, to the accountant Alain Sylvestre, the Applicant's representative
for the purposes of the notice of objection. On January 25, 2007, Canada Post returned
to the Minister the notification of confirmation that he had sent out by
registered mail. It was marked "unclaimed." On
January 29, 2007, the Minister sent the said notification of confirmation
by regular mail along with an explanatory letter. The time in which to
file an appeal expired on January 31, 2007.
[4] The explanatory
letter dated January 29, 2007, reads:
[TRANSLATION]
. . .
The post office has returned to us,
marked "unclaimed", the Minister's notification of confirmation, which
was sent to you at the above address by registered mail on November 2, 2006. We are returning the notification to
you by regular mail.
We wish to inform you that the
confirmation is considered to have been properly served on
November 2, 2006, and the 90‑day period in which to file an
appeal in the Tax Court of Canada commenced on that date. . . .
[5] The letter of November 2, 2006, to the accountant, who
represented the Applicant for the purposes of the notice of objection, read as
follows:
[TRANSLATION]
We have considered the aforementioned objection
and have confirmed the assessment. Your client was officially notified of this
confirmation.
Attached is a copy of the Minister's
notification of confirmation, as well as an information document concerning the
appeal process in the event that your client wishes to exercise his right to
appeal.
[6] The Applicant
testified. He said that he contacted his lawyer immediately after receiving the
notification of confirmation by regular mail. There was no explanation as to
why he did not contact his accountant, since it was his accountant who had
acted on his behalf with regard to the notice of objection.
[7] Indeed,
Alain Sylvestre, a chartered accountant, was the one who filed the notice
of objection to the assessment. On the same day that the notification of
confirmation was sent to the Applicant by registered mail, Mr. Sylvestre
was notified of the Minister's decision by regular mail.
[8] The Applicant
asserts that the accountant did not notify him of this decision.
[9] Counsel for the
Respondent submits that, under subparagraph 167(5)(b)(iii), the
application must be made as soon as circumstances permit. She submits that
this was not done in the case at bar because the application was received five
months later.
[10] Counsel for the
Applicant submits that the Applicant contacted his lawyer as soon as he
received the notification of confirmation.
Analysis and determination
[11] Subsection 167(5)
of the Income Tax Act reads:
(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.
[12] Based on the
evidence, I am not satisfied that the Applicant was diligent or that he even
had an intention to appeal. Firstly, Mr. Sylvestre, the Applicant's
representative for the purposes of the objection, did not testify or affirm in
writing that he failed to notify the Applicant of the outcome of the objection
to the assessment or to discuss it with him. Secondly, the evidence to the
effect that the Applicant contacted his lawyer immediately after receiving the
letter sent by regular mail on January 29, 2007, is not sufficient. It is a
mere assertion by the Applicant. It was not confirmed by the lawyer's
appointment book, nor was it confirmed by the retainer of the lawyer by the
Applicant.
[13] Consequently, I am
not satisfied that the application was made as soon as circumstances permitted.
Moreover, I am not satisfied that, within the time otherwise limited for
appealing, he was unable to act or instruct another to act in his name, that he
had a bona fide intention to appeal, or that there are reasonable
grounds for the appeal.
[14] For all these
reasons, the application for an extension of time is dismissed.
Signed at Ottawa, Canada, this 28th day of September 2007.
"Louise Lamarre Proulx"
Translation
certified true
on this 8th day of
November 2007.
Brian McCordick,
Translator
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