Docket: 2008-1090(GST)APP
BETWEEN:
DEAN A. PORTER HOLDINGS INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on July 24, 2008 at Halifax, Nova Scotia
Before: The Honourable
Justice Wyman W. Webb
Appearances:
|
Agent for the Appellant:
|
Dean
A. Porter
|
|
Counsel for the Respondent:
|
Martin Hickey
|
____________________________________________________________________
ORDER
The application by the Appellant to
extend the time within which an appeal to this Court may be filed under the Excise
Tax Act is dismissed and the appeal filed, which identifies Dean A. Porter
Holdings Incorporated and Dean A. Porter as the Appellants, is quashed.
Signed at Toronto, Ontario,
this 26th day of August 2008.
“Wyman W. Webb”
Citation: 2008TCC477
Date: 20080826
Docket: 2008-1090(GST)APP
BETWEEN:
DEAN A. PORTER HOLDINGS INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The Appellant filed an
application to extend the time within which an appeal to this Court may be
filed under the Excise Tax Act. The reference line in the letter from
the Appellant states that it is in relation to “Extension of Time to file
Appeal re GST/HST Account of Dean A. Porter Holdings Incorporated”. However in
the Notice of Appeal that was attached to the document filed on March 3, 2008
it would appear that both Dean A. Porter Holdings Incorporated and Dean A
Porter were intended to be the Appellants. Dean A. Porter had been assessed
personally as a director of Dean A. Porter Holdings Incorporated for its
unremitted HST.
[2]
Dean A. Porter
testified at the Hearing and he confirmed that he did not intend to appeal the
assessment of HST against Dean A. Porter Holdings Incorporated. In any event,
no notice of objection had been filed by Dean A. Porter Holdings Incorporated
in relation to the HST that had been assessed against this company. Filing a
notice of objection is a perquisite to filing an appeal to this Court (Douglas Whitford
v. The Queen 2008 TCC 359).
[3]
The issue with respect
to the appeal for Dean A. Porter of his personal liability as a director of
Dean A. Porter Holdings Incorporated is whether the application to extend the
time within which he may appeal to this Court has been properly made within the
time as specified in the Excise Tax Act.
[4]
Dean A. Porter was
assessed personally as a director of Dean A. Porter Holdings Incorporated for
its unremitted HST on September 13, 2004. Dean A. Porter filed a notice
of objection to this assessment and the confirmation by the Minister of the
assessment was initially sent to Dean A. Porter by registered mail on June 26,
2006. As the letter was returned unopened by Canada Post, it was sent by
regular mail on August 9, 2006. Dean A. Porter confirmed at the hearing that he
had received this notice of confirmation in August of 2006.
[5]
The first document
filed with this Court by either Dean A. Porter or Dean A. Porter Holdings
Incorporated was a letter that was sent on March 7, 2007. This letter stated as
follows:
Re: Extension of Time to file Appeal re GST/HST Account of Dean
A. Porter Holdings Incorporated
I am writing to you to have the time extended for filing an appeal
re: GST/HST account of Dean A. Porter Holdings Incorporated. The “Notice of
Decision” has been received.
The Reasons I did not file an appeal within the time limit.
(A)
Waiting for clarification on some issues that
would have an impact on the case.
(B)
Busy providing an income for my family, which is
the #1 priority.
Yours respectfully,
Dean Alison Porter.
(The emphasis was in the letter.)
[6]
There is no indication
in this letter that he is appealing the assessment that was issued against Dean
A. Porter as a director of Dean A. Porter Holdings Incorporated. Only the
corporation is referred to in the Re: line and in the body of the letter. As
well, the Notice of Appeal was not attached to this application, which is a
requirement of section 305 of the Excise Tax Act. This section provides
as follows:
305. (1) Where no appeal to the Tax Court under section 306 has
been instituted within the time limited by that provision for doing so, a
person may make an application to the Tax Court for an order extending the time
within which an appeal may be instituted, and the Court may make an order
extending the time for appealing and may impose such terms as it deems just.
(2) An application made under subsection (1) shall set out the
reasons why the appeal to the Tax Court was not instituted within the time
otherwise limited by this Part for doing so.
(3) An application made under subsection (1) shall be made by
filing in the Registry of the Tax Court, in accordance with the
provisions of the Tax Court of Canada Act, three copies of the
application accompanied by three copies of the notice of appeal.
(4) After receiving an application made under this section, the Tax
Court shall send a copy of the application to the office of the Deputy Attorney
General of Canada.
(5) No order shall be made under this section unless
(a) the application is made within one year after the
expiration of the time otherwise limited by this Part for appealing;
and
(b) the person demonstrates that
(i) within the time otherwise limited by this Part for appealing,
(A) the person was unable to act or to give a mandate to act in the
person's name, or
(B) the person 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 it
to be made, and
(iv) there are reasonable grounds for appealing from the assessment.
(emphasis added)
[7]
In June of 2007 Dean A.
Porter faxed the same page to the registry office and the Notice of Appeal was
not attached to this fax. As noted above, there was no reference in this one
page that Dean A. Porter was appealing the assessment issued against him as a
director of Dean A. Porter Holdings Incorporated. The next document that was filed
with this Court was not filed until March 2008 and this document did include
the Notice of Appeal identifying Dean A. Porter Holdings Incorporated and Dean
A. Porter as the Appellants. Since the time otherwise limited for appealing is
ninety days after the date that notice of confirmation of the assessment was
sent to Dean A. Porter, this document filed in March 2008, would have been
filed after the one year limitation period referred to in paragraph 305(5)(a)
of the Excise Tax Act.
[8]
Therefore since there
was no indication in the documents that were filed with this Court in March and
June 2007 that Dean A. Porter was appealing the assessment issued against him
as a director of a Dean A. Porter Holdings Incorporated and since the Notice of
Appeal was not attached to any documents filed in 2007 and was not filed until
March 2008, there is no valid application for an extension of time to file a Notice
of Appeal in relation to the assessment issued against Dean A. Porter as a
director of Dean A. Porter Holdings Incorporated. Since no notice of objection
was filed by Dean A. Porter Holdings Incorporated, Dean A. Porter Holdings
Incorporated has no right to appeal to this Court.
[9]
As a result, the
application to extend the time within which an appeal to this Court may be
filed under the Excise Tax Act is dismissed and the appeal filed, which
identifies Dean A. Porter Holdings Incorporated and Dean A. Porter as
the Appellants, is quashed.
Signed at Toronto, Ontario, this 26th day of August 2008.
“Wyman W. Webb”
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