|
Docket: 2003-4609(IT)APP
|
|
|
|
BETWEEN:
|
|
EURO SOFTWARE CANADA MONDIAL (ESCM) INC.,
|
|
Applicant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
|
|
____________________________________________________________________
Application heard on common evidence with the
application of
Logic Alliance Inc. (2003-4610(IT)APP)
on April 6, 2004, at Québec, Quebec.
|
Before: The
Honourable Justice Alain Tardif
|
|
|
|
Appearances:
|
|
|
|
Agent for the
Applicant:
|
Marcel Lachance
|
|
|
|
Counsel for the
Respondent:
|
Stéphanie Côté
|
____________________________________________________________________
ORDER
Upon
application for an order extending the time within which an appeal from the
assessments made pursuant to the Income Tax Act for the 1996 and 1997 taxation
years may be instituted;
The application is allowed for the attached
reasons; the Court orders that the time within which an appeal may be
instituted be extended until the date of this order and that the Notice of
Appeal submitted with the application be considered as a valid Notice of
Appeal; the Respondent will have 60 days from the date of this order to submit
a Reply to the Notice of Appeal.
Signed at Ottawa, Canada, this 29th day of April 2004.
Tardif
J.
Translation certified
true
on this 30th day of
March 2009.
Bella
Lewkowicz, Translator
|
Docket: 2003-4610(IT)APP
|
|
|
|
BETWEEN:
|
|
LOGIC ALLIANCE INC.,
|
|
Applicant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
|
|
____________________________________________________________________
Application heard on common evidence with the
application of
Euro Software Canada Mondial (ESCM) Inc. (2003-4609(IT)APP)
on April 6, 2004, at Québec, Quebec.
|
Before: The
Honourable Justice Alain Tardif
|
|
|
|
Appearances:
|
|
|
|
Agent for the
Applicant:
|
Marcel Lachance
|
|
|
|
Counsel for the
Respondent:
|
Stéphanie Côté
|
____________________________________________________________________
ORDER
Upon
application for an order extending the time within which an appeal from the assessment
made pursuant to the Income Tax Act for the 1996 taxation year may be
instituted;
The application is allowed for the attached
reasons; the Court orders that the time within which an appeal may be
instituted be extended until the date of this order and that the Notice of
Appeal submitted with the application be considered as a valid Notice of
Appeal; the Respondent will have 60 days from the date of this order to submit
a Reply to the Notice of Appeal.
Signed at Ottawa, Canada, this 29th day of April 2004.
Tardif
J.
Translation certified
true
on this 30th day of
March 2009.
Bella
Lewkowicz, Translator
|
Citation: 2004TCC296
|
|
Date: 20040429
|
|
Dockets: 2003-4609(IT)APP
2003-4610(IT)APP
|
|
|
|
BETWEEN:
|
|
EURO SOFTWARE CANADA MONDIAL (ESCM) INC.,
LOGIC ALLIANCE INC.,
|
|
Applicants,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
|
|
REASONS FOR ORDER
Tardif J.
[1] This is an application to extend the time
for the appeal instituted by the taxpayer’s agent. The application pertains to
an assessment for the 1996 taxation year.
[2] For several years, the taxpayer entrusted
all its tax files to Marcel Lachance, its agent in the case at bar.
[3] In support of the application to extend the
time, Mr. Lachance explained that he had had two surgeries requiring two stays
in the hospital and a prolonged convalescence.
[4] Even though he was carrying on his business
from his residence, he explained that health reasons and the resulting
preoccupations were the reasons why he could not submit the Notice of Appeal
within the 90-day deadline.
[5] He said he clearly expressed to various
stakeholders in discussions in regard to the objection the taxpayer’s intention
to submit a Notice of Appeal before the Tax Court of Canada in the event that
the assessment was upheld.
[6] The intention to institute an appeal before
the Tax Court of Canada can also be inferred from the submission of the
application for an extension of time.
[7] Parliament foresaw the possibility of
instituting an appeal from an assessment after the 90-day deadline, provided
certain conditions, as described in section 167, are met:
167(1) Where an appeal to the Tax Court of Canada
has not been instituted by a taxpayer under section 169 within the time limited
by that section for doing so, the taxpayer may make an application to the Court
for an order extending the time within which the 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 167(1)
shall set out the reasons why the appeal was not instituted within the time
limited by section 169 for doing so.
(3) An application made under subsection (1)
shall be made by filing in the Registry of the Tax Court of Canada, 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) The Tax Court of Canada shall send a copy
of each application made under this section 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 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.
[8] Making a decision with respect to whether
an application is well-founded calls for an analysis and assessment of the
facts submitted. These facts may be interpreted in a permissive or restrictive
manner.
[9] For example, a restrictive approach is one
that requires irrefutable evidence, such as a dated written document with proof
of receipt by the agency that the taxpayer indeed intended to institute an
appeal within the 90-day deadline.
[10] This kind of approach is contrary to the
spirit of the Act; moreover, it would have a ridiculous effect as the notice or
an announcement of the intention to institute an appeal could then be
considered an actual Notice of Appeal, at which point it would be futile to
provide for the possibility of submitting a Notice of Appeal after the 90-day
deadline.
[11] If Parliament provided for the possibility
of an appeal being instituted after the 90-day deadline, it seems clear to me
that situations or circumstances exist where this right may be granted.
Subscribing to the Respondent’s arguments would prevent all taxpayers from
obtaining the right to institute an appeal after the 90-day deadline.
[12] Caution is required when assessing the
grounds submitted by the Respondent in opposition to an application for
permission to obtain an extension, as it constitutes an indirect means of
obtaining confirmation of the merits of the assessment and thus depriving the
taxpayer of the right to speak with respect to the content of the file. The
right to contest the merits of an assessment is fundamental and all initiatives
undertaken to compromise this right must be carefully evaluated.
[13] When an application for an extension of
time to file a Notice of Appeal after the 90-day deadline is based on serious
and reasonable grounds, I believe it must be allowed, unlike frivolous
applications whose main objective is to gain time.
[14] In this case, the taxpayer had relied on
the professionalism of its accountant for a long time. It had no reason to
mistrust or suspect his actions with respect to his mandate.
[15] The taxpayer must hold the accountant in
the highest regard as their business relationship has lasted many years. Mr.
Lachance was stricken with a serious health problem that totally prevented him
from taking action. He was not trying to get out of anything; he assumed
complete responsibility for the delay in filing the Notice of Appeal after the
90-day deadline.
[16] The grounds for this application seemed to
me to be serious and valid in explaining and justifying the delay. With
respect to the intention to institute an appeal before the Tax Court of Canada,
again an analysis of the actions leaves no doubt as to the taxpayer’s intention
to institute an appeal.
[17] This is in no way an application based on
frivolous grounds for the purpose of gaining time.
[18] By contesting the application for an
extension of time, the Respondent basically intended to obtain confirmation of
the merits of the assessment without having to submit any arguments with
respect to the content of the assessment.
[19] The application is allowed and the Court
orders that the time within which an appeal may be instituted be extended until
the date of this order and that the Notice of Appeal submitted with the
application be considered as a valid Notice of Appeal; the Respondent will have
60 days from the date of this order to submit a Reply to the Notice of Appeal.
Signed at Ottawa, Canada, this 29th day of April 2004.
Tardif
J.
Translation certified
true
on this 30th day of March
2009.
Bella Lewkowicz, Translator
Email this Content