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Docket: 2002‑2912(GST)I
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BETWEEN:
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BERNARD DESROSIERS,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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___________________________________________________________________
Motions heard on June 25, 2003, at Rivière‑du‑Loup, Quebec
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Before: The
Honourable Judge François Angers
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Appearances:
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Agent for the
Appellant:
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Bernard Brosseau
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Counsel for the
Respondent:
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Frank Archambault
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____________________________________________________________________
ORDER
Upon
motion by the Respondent for dismissal of the appeal on the ground that it was
filed outside the time prescribed by the Excise Tax Act (the
"Act");
Whereas there is no evidence that
the reassessment was sent to the Appellant pursuant to the requirements set out
in subsection 301(5) of the Act;
The
Respondent's motion is dismissed.
Upon
preliminary motion by the Appellant to vacate the assessment on the ground that
the Minister did not act with all due dispatch pursuant to
subsection 301(3) of the Act;
In view
of the attached reasons;
The
Appellant's motion is dismissed.
The
appeal from the assessment dated March 13, 1998 shall be heard at a
future sitting of this Court, at a date that shall be communicated to the
parties.
Signed at Edmundston, Canada,
this 23rd day of December 2003.
Angers, J.
on this 26th day of
April 2004.
Sharlene Cooper,
Translator
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Citation: 2003TCC859
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Date: 20031223
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Docket: 2002‑2912(GST)I
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BETWEEN:
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BERNARD DESROSIERS,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR ORDER
François Angers, J.
[1] This
is an appeal from an assessment dated March 13, 1998, in relation to
goods and services tax, made under the Excise Tax Act (the
"Act") for the period from February 1, 1995 to
November 30, 1997. Both parties filed a motion with the Court at the
start of the hearing, and in view of the nature of these motions, it was
appropriate to rule on them before hearing the evidence on the merits.
[2] To
get a clear picture of the context, I will outline the facts that were proved
in support of both motions and I will clarify their nature.
[3] The
assessment under appeal is dated March 13, 1998. It was sent to the Appellant's
home address, where he has resided since 1983. On June 11, 1998,
Revenue Canada – Customs, Excise and Taxation received an undated Notice
of Objection to the said assessment, which was filed by the Appellant pursuant
to the provisions of subsection 301(1.1) of the Act.
[4] Having
received no confirmation or reassessment from the Minister, or notice that the
assessment had been vacated, the Appellant cited paragraph 306(b) of the
Act, and he filed an appeal with our Court on May 16, 2002.
Paragraph 306(b) reads as follows:
A person who has filed a notice of objection to
an assessment under this Subdivision may appeal to the Tax Court to have
the assessment vacated or a reassessment made after either
(a) . . .
(b) one hundred and eighty days
have elapsed after the filing of the notice of objection and the Minister has
not notified the person that the Minister has vacated or confirmed the
assessment or has reassessed.
[5] By
a preliminary motion, the Appellant moved to have the assessment vacated on the
ground that the Minister did not act with all due dispatch upon receiving the
Notice of Objection to reconsider the assessment and to vacate, confirm or
reassess it pursuant to subsection 301(3).
[6] In
reply to this motion, the Respondent adduced in evidence a reassessment dated
January 28, 2000, for the same period, which was made pursuant to
subsection 301(5) of the Act and which vacated the assessment dated
March 13, 1998. A photocopy of the Minister's record, showing that
the reassessment was mailed on January 14, 2000, is appended to the
reassessment;
[7] Thus,
Counsel for the Respondent maintains that the Minister did indeed consider the
Notice of Objection and that a reassessment was made as a result.
[8] This
situation led Counsel for the Respondent to ask the Court to dismiss the appeal
on the ground that it was filed outside the time prescribed by the Act, as the
reassessment is dated January 28, 2000, and the Notice of Appeal was
filed on May 16, 2002.
[9] In
reply, the Appellant testified that he never received the reassessment and that
this was the first time he had heard of it. Furthermore, the Respondent's Reply
to the Notice of Appeal does not mention the existence of a reassessment.
[10] Subsection 301(5) of the Act states that after reconsidering or
confirming an assessment, the Minister shall send to the person objecting
notice of the Minister's decision by registered or certified mail. Therefore,
the Minister need only send the reassessment by registered or certified mail to
meet the service requirements set out in the Act. In cases where service
becomes a point at issue, proof of service by mail is
provided pursuant to the provisions of subsection 335(1) of the Act, which
reads as follows:
Proof of service by mail – Where, under this Part or a regulation
made under this Part, provision is made for sending by mail a request for
information, a notice or a demand, an affidavit of an officer of the Agency,
sworn before a commissioner or other person authorized to take affidavits,
setting out that the officer has knowledge of the facts in the particular case,
that such a request, notice or demand was sent by registered or certified mail
on a named day to the person to whom it was addressed (indicating the address),
and that the officer identifies as exhibits attached to the affidavit the post
office certificate of registration of the letter or a true copy of the relevant
portion thereof and a true copy of the request, notice or demand, is evidence
of the sending and of the request, notice or demand.
[11] In this case, there is no evidence that the
reassessment was sent to the Appellant pursuant to the requirements of
subsection 301(5) of the Act. The document attached to the reassessment
indicates that it was sent, but does not specify the method by which it was
sent. Since I am not satisfied that the reassessment was in fact sent pursuant
to the requirements of the Act, I must find that the Minister never sent the
Appellant the result of his consideration of the Appellant's Notice of
Objection. Therefore, this appeal was filed within the prescribed time.
[12] It is important to remember that the Act does
not require that the assessment be received; rather, according to the Act,
simply sending the assessment is sufficient. In this regard, I need only refer
to the decision of the Federal Court of Appeal in Schafer v. R.,
[2000] F.C.J. No. 1480 (Q.L.); [2000] G.S.T.C. 82.
Therefore, the Respondent's motion is dismissed.
[13] With regard to the Appellant's motion faulting
the Minister for not acting with all due dispatch upon receiving the Notice of
Objection, the Agent for the Appellant is basing this motion on the decision
rendered on February 3, 1989, by Bonner J. of this Court, in J. Stollar Construction Ltd. v.
The Minister of National Revenue, 89 DTC 134. In this case,
Bonner J. invalidated an assessment that was made by the Minister under
the Income Tax Act more than five years after the
taxpayer corporation had sent its tax return.
[14] Since Stollar, there have been other
decisions dealing with the same issue, including Ginsberg v. Canada,
[1996] 3 F.C. 334, in which the Federal Court
of Appeal found that a breach of the duty to assess tax with "all due
dispatch" does not mean that the assessment will be vacated. The same
reasoning applies in this case, even though the provisions of the Act are
at issue here. In this case, the Minister had already made an assessment; it is
only the Minister's consideration of the objection that must be made with all
due dispatch.
[15] Another distinction in this case is that the
Appellant has the right to appeal to this Court if 180 days have elapsed
after the filing of the Notice of Objection and the Minister has not notified
the person that the Minister has vacated or confirmed the assessment or has
reassessed. Thus, the Appellant is permitted to advance his case and be heard
on the merits without waiting until the Minister has considered the Appellant's
Notice of Objection. Finally, application of the provisions set out in
section 299 of the Act will preclude the assessment under appeal in this
case from being vacated.
[16] For these reasons, the Appellant's motion is
dismissed. Thus, the appeal from the assessment dated March 13, 1998,
shall be heard at a future sitting of this Court, at a date that shall be
communicated to the parties.
Signed at Edmundston, Canada, this 23rd
day of December 2003.
Angers, J.
on this 26th day of
April 2004.
Sharlene Cooper,
Translator
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