Lester c. La Reine, 2004 TCC 179 (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

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Application heard on November 21, 2003, at Montréal, Quebec

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ORDER

          Upon the application filed by counsel for the Respondent to obtain an order dismissing the Appellant's appeal for want of jurisdiction of the Court;

          Upon the filing of Alain Solliec's sworn statement;

          And upon the parties' allegations;

The application is dismissed and a 30-day extension of the time limit is granted (from the date on which the Order is signed) to the Respondent to file and serve a Reply to Notice of Appeal, in accordance with the attached Reasons for Order.

Signed at Ottawa, Canada, on this 24th day of February 2004.

Bédard J.

Translation certified true

on this 24th day of February 2005

Aveta Graham, Translator

[OFFICIAL ENGLISH TRANSLATION]

REASONS FOR ORDER

BédardJ.

[1]      This is an application by the Respondent to quash the appeal, which was instituted against an assessment made with regard to Harold G. Lester for the 2001 taxation year, on the ground that, because Mr. Lester failed to serve a notice of objection to the assessment as he is required to do under section 165 of the Income Tax Act (the "Act"), he cannot appeal under section 169 of the Act.

[2]      On December 2, 2002, the Minister of National Revenue (the "Minister") issued an assessment with regard to Mr. Lester for the 2001 taxation year.

[3]      On December 27, 2002, Mr. Lester's counsel served, by bailiff, a letter dated December 20, 2002, on the Canada Customs and Revenue Agency in which he requests reconsideration of the December 2, 2002, assessment. The letter sets out the reasons for the objection to the assessment and was served at 2251 Réné Lévesque Boulevard, city of Saguenay, district of Jonquière, Quebec.

[4]      The Minister must have read the December 20, 2002, letter because one of his agents advised Mr. Lester, in a letter dated January 24, 2003, that he had been allowed a $3,655 deduction for support payments but that he was denied the additional deduction of $14,000 on the ground that a lump sum payment is not considered a support payment under the Act.

[5]      On January 31, 2003, the Minister issued a reassessment with regard to Mr. Lester for the 2001 taxation year allowing him a $3,655 deduction for support payments.

[6]      On April 29, 2003, Mr. Lester appealed to the Court to have the January 31, 2003, reassessment vacated.

[7]      The Minister is applying to quash this appeal on the ground that Mr. Lester did not serve a notice of objection under subsection 165(1) of the Act. In fact, the Minister submits that the December 20, 2002, letter is not a notice of objection within the meaning of subsection 165(1) of the Act.

[8]      With the greatest of respect for the contrary opinion, I am of the view that by serving his December 20, 2002, letter requesting reconsideration of the assessment and setting out the reasons for his objection, Mr. Lester complied with the spirit of the provisions set out in section 165 of the Act. As demonstrated in the letter from the Minister's agent and the reassessment, it is undeniable that the Minister read the December 20 letter and dealt with it appropriately.

[9]      For those reasons, the Respondent's application is dismissed. However, I grant a 30-day extension of the time limit (from the date on which the Order is signed) to the Respondent to file and serve a Reply to Notice of Appeal.

Signed at Ottawa, Canada, this 24th day of February 2004.

Bédard J.

Translation certified true

on this 24th day of February 2005

Aveta Graham, Translator