Docket: 2006-1529(EI)
BETWEEN:
CARLOS GUEVARA, a/t ABC SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
____________________________________________________________________
Motion
heard on January 30, 2007, at Winnipeg, Manitoba.
Before: The Honourable
Justice C.H. McArthur
Appearances:
|
For the Appellant:
|
Carlos Guevara
|
|
Counsel for the Respondent:
|
Julien Bédard
|
____________________________________________________________________
ORDER
Upon the motion by the Respondent concerning the period of
2000 and 2001 and seeking to obtain:
a. dismissal
of the Notice of Appeal;
b. alternatively,
a period of 60 days to file the Minister’s Reply to the Notice of Appeal;
c. any
reparation sought by the Respondent or that the Tax Court of Canada (the
“Court”) finds appropriate and just in the circumstances;
And upon the affidavit filed by René Davidson and the
allegations of the parties;
In
accordance with the attached Reasons for Order, the motion is granted and the
purported appeal is dismissed.
Signed at Ottawa, Canada, this 24th day of
July 2007.
“C.H. McArthur”
on this 26th day
of August 2007.
Gibson Boyd, Translator
Citation: 2007TCC434
Date: 20070724
Docket: 2006-1529(EI)
BETWEEN:
CARLOS GUEVARA, a/t ABC SERVICES,
Appellant,
and
THE MINISTER OF NATIONAL REVENUE,
Respondent.
[OFFICIAL ENGLISH
TRANSLATION]
REASONS FOR ORDER
McArthur J.
Facts
[1] On June
26, 2002, the Minister of National Revenue (the “Minister”) mailed his decision
under section 93 of the Employment Insurance Act (the “Act”) concerning
the insurability of two workers.
[2] On May 16, 2006, the Appellant filed a
Notice of Appeal with the Court.
[3] On October 27, 2006, the Respondent filed
the Notice of Motion that the Court is seized of.
Reasons
for motion
[4] Counsel for the Respondent submits that:
a.
The Court does not have
jurisdiction on the subject of the appeal;
b.
An appeal cannot be
made under section 103 of the Act given that the appeal was not filed within 90
days following the date when the Minister’s decision was communicated;
c.
The Appellant was not
assessed following the decision in his favour that was communicated to him on
June 26, 2002.
Provisions
Employment
Insurance Act
Objection and review
Appeal to the Tax Court
of Canada
103. (1) The Commission or a person affected by a
decision on an appeal to the Minister under section 91 or 92 may appeal from
the decision to the Tax Court of Canada in accordance with the Tax Court of
Canada Act and the applicable rules of court made thereunder within 90 days
after the decision is communicated to the Commission or the person, or within
such longer time as the Court allows on application made to it within 90 days
after the expiration of those 90 days.
Extension of time to
appeal
(1.1) Section 167, except paragraph
167(5)(a), of the Income Tax Act applies, with such modifications
as the circumstances require, in respect of applications made under subsection
(1).
Communication of the decision
(2) The determination of the time
at which a decision on an appeal to the Minister under section 91 or 92 is
communicated to the Commission or to a person shall be made in accordance with
the rule, if any, made under paragraph 20(1.1)(h.1) of the Tax Court
of Canada Act.
Decision
(3) On an appeal, the Tax Court of Canada
(a) may vacate, confirm or
vary a decision on an appeal under section 91 or an assessment that is the
subject of an appeal under section 92;
(b) in the case of an
appeal under section 92, may refer the matter back to the Minister for
reconsideration and reassessment;
(c) shall notify in
writing the parties to the appeal of its decision; and
(d) give reasons for its
decision but, except where the Court deems it advisable in a particular case to
give reasons in writing, the reasons given by it need not be in writing.
Analysis
Is there a decision to be contested?
[5] On May 29, 2002, the Minister notified the
Appellant that no official notice of assessment had been issued and that the
right of appeal only exists when a notice of assessment has been issued. This
letter is reproduced below:
[TRANSLATION]
CARLOS GUEVARA
ROSA GUEVARA VALLE
(ABC Services)
264 Eugenie St.
WINNIPEG, MB R2H 0Y4
May 29, 2002
Dear Sir:
In response to your letter of April 20, 2002,
and your application to appeal the decision of July 6, 2001 (Auditor’s account
statement of July 6, 2001), we would like to inform you of the following:
The credit of $579.22 was
applied to the 2001 account.
The account indicating the balance of
$529.70 was never assessed by our computer system. As a result, no official
notice of assessment was issued.
There is no right to
appeal for the account statement for $529.70 at this time.
A right of appeal only
exists when a notice of assessment is issued.
If you have any questions, do not hesitate to
contact the auditor, Dave Ivey, at (202) 983-8182.
Sincerely,
Paulette Martens
Appeals officer (EI/CPP)
[6] During the hearing, counsel for the
Respondent explained the reason why the notice of assessment was not issued:
Mr. BÉDARD:
[TRANSLATION]
The reason why there was never an assessment
is because the amount was never collected. I do not know why. My understanding
is that the officer from the Agency was on leave and his replacement did not
proceed with that case or that audit. Regardless. There never was an
assessment, there never were any funds collected, and the credit in the account
statement was applied to Mr. Guevara’s debt.
[7] Considering the facts, I am not convinced
that there is a decision to contest in this case and, even if there was one, I
think the motion should be granted for another reason.
Objection
under section 103 of the Act
[8] Pursuant to subsection 103(1) of the Act,
the Appellant had 180 days following the date of communication of the decision
to file an application with the Court. The decision was communicated on June
26, 2002, and the Appellant therefore had until December 23, 2002, to file his
application with the Court.
[9] It is clear that the Appellant did not
respect the time limit and did not meet the requirements set out in subsection
103(1) of the Act by filing an appeal with the Court on May 16, 2006.
[10] René Davidson works as an officer for the
Canada Revenue Agency (the “Agency”). He indicated in his affidavit that he was
unable to confirm that the Appellant had served an appeal to the Court in the
90 days following the decision as required by section 103 of the Act. In
addition, he was unable to confirm that the Appellant had made an application
for extension of time to file his Notice of Appeal before the Court within 90
days after expiry of the 90 day period following the Minister’s decision in
accordance with section 103 of the Act.
[11] For these reasons, the motion is granted
and the purported appeal is dismissed.
Signed at Ottawa, Canada, this 24th day of July 2007.
“C.H. McArthur”
on this 26th day
of August 2007.
Gibson Boyd, Translator
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