2002-1602(IT)APP
BETWEEN:
LAL MANSUKH,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on December 17, 2002 at
Vancouver, British Columbia, by
the Honourable Judge L.M. Little
Appearances
For the
Applicant:
The Applicant himself
Counsel for the Respondent: Johanna
Russell
ORDER
Upon
application for an Order extending the time within which a Notice
of Objection to the assessment of income tax for the 1992, 1993
and 1994 taxation years may be served;
And
upon hearing what was alleged by the parties;
The
application is dismissed in accordance with the attached Reasons
for Order.
Signed at Vancouver, British Columbia, this 21st day of
January 2003.
J.T.C.C.
Date: 20030121
Docket: 2002-1602(IT)APP
BETWEEN:
LAL MANSUKH,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Little, J.
A. FACTS:
[1] The Minister of National Revenue
(the "Minister") initially assessed the Applicant with
respect to the 1992, 1993 and 1994 taxation years by Notices of
Assessment dated June 16, 1993, July 11, 1995 and December 23,
1996 respectively.
[2] On the 18th day of January 2000
the Minister issued Notices of Reassessment (the
"Reassessments") for the Applicant's 1992, 1993 and
1994 taxation years. No further Reassessments were issued with
respect to the 1992, 1993 and 1994 taxation years.
[3] On the 18th day of February 2000
Mr. Samir Fawaz ("Mr. Fawaz"), the accountant
representing the Applicant, filed Notices of Objection to the
Reassessments.
[4] On the 9th day of November 2000
the Minister issued a Notification of Confirmation (the
"Notification"). The Notification was sent by
Registered Mail to the office of Mr. Fawaz.
[5] On the 4th day of December 2000
the Notification was returned by the Post Office to the Appeals
Section of the Minister's Department.
[6] On December 4, 2000, Ms. Julisa
Cheng, an Appeals Officer at the Minister's Department
telephoned Mr. Fawaz and indicated that a Notification in
connection with the Reassessments of the Applicant's 1992,
1993 and 1994 taxation years was issued on the 9th day of
November 2000. Ms. Cheng testified at the hearing that she
advised Mr. Fawaz that if the Applicant wishes to file a
Notice of Appeal to the Tax Court of Canada he must do so within
90 days of November 9, 2000. Ms. Cheng testified that on December
4, 2000 she mailed, by regular mail, a copy of the Notification
to Mr. Fawaz.
[7] On the 3rd day of March 2002 the
Applicant sent a second Notice of Objection re the Reassessments
to the Minister.
[8] On the 9th day of April 2002 Foto
Sukanen, an official of the Minister, wrote to the Applicant. In
this letter Mr. Sukanen stated as follows:
You did not file your objection within 90 days from the
mailing date of the Notices of Reassessment. Therefore, we cannot
accept it under the "Income Tax Act".
Furthermore, we cannot grant you an extension of time for
filing your objection. Subsection 166.1(7) of the Income Tax Act
states that you must make an application for an extension within
one year of the expiration of the time limit for serving a
"Notice of Objection".
We regret that the Appeals Division cannot assist you further
in this matter.
[9] By letter dated the 17th day of
April 2002 Mr. Fawaz wrote to the Canada Customs and Revenue
Agency requesting an extension of time within which the Applicant
might file a Notice of Objection.
[10] By letter dated the 25th day of April
2002 H. Sellmeyer, an official of the Minister, sent Mr. Fawaz a
letter similar to the letter that was sent to him by
Foto Sukanen on April 9, 2002.
[11] On the 18th day of April 2002 the
Applicant applied to the Court for an extension of time within
which to file a Notice of Objection to the Reassessments.
B. ISSUE:
[12] The issue is whether the Applicant
should be granted an extension of time within which to file a
Notice of Objection to the Reassessments.
C. ANALYSIS
[13] I have carefully considered the
testimony of the Applicant and the documents submitted by him and
by counsel for the Respondent. I have concluded that the
Applicant's request to extend the time within which to file a
Notice of Objection should be dismissed for the following
reasons:
1. Subsection 166.1(1) of the Act contains the
rules providing for an extension of time by the Minister within
which a taxpayer may file a Notice of Objection. Section 166.1
states that the section may be relied upon by the taxpayer if no
Notice of Objection has previously been served. In this situation
a valid Notice of Objection dated the 18th day of February 2000
was served on the Minister. The Applicant can therefore not rely
upon subsection 166.1(1) of the Act.
2. If the Applicant wished to dispute the Notification
that was issued by the Minister on the 9th day of November 2000
the Applicant should have filed a Notice of Appeal to the Tax
Court within 90 days of November 9. A Notice of Appeal was never
filed.
3. Section 167 of the Act provides that a
taxpayer may obtain an extension of time within which to file a
Notice of Appeal. However, subsection 167(5) of the
Act provides as follows:
167(5) When order to be made. 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;
[14] In this situation the time limited for
filing a Notice of Appeal would expire on the 9th day of February
2001. One year from that date would be February 8, 2002. An
application to extend the time to file a Notice of Objection was
filed by Mr. Fawaz on the 17th day of April 2002. It
therefore follows that the Applicant is too late to file a
request for an extension of time within which to file a Notice of
Appeal.
[15] The Applicant argued that while the
Minister may have sent a Notification to Mr. Fawaz, the Applicant
has never received the Notification.
[16] I have considered the Applicant's
argument and I have concluded that in this situation all that is
necessary to comply with the Act is for the Minister to
issue the Notification by Registered Mail. The evidence is clear
that the Minister met this requirement. Support for this position
can be found in the decision of the Federal Court of Appeal in
Bowen v. Minister of National Revenue, 91 DTC 5594.
In that decision Stone J.A., for the Court, said at page
5596:
In our opinion, the duty resting upon the
Minister under subsection 165(3) was to do precisely what he
did, viz., notify the respondent of the confirmation by
registered mail. Nothing in that subsection or in
section 169 required the notification to be
"served" personally or to be received by the taxpayer.
In dispatching the notification by registered mail the Minister
was entitled to avail himself of the address or addresses which
the respondent himself had already furnished. There was no
obligation on him to look beyond that information.
[17] In connection with the address used by
the Minister it should be noted that Mr. Fawaz, the
taxpayer's accountant, filed the original Notices of
Objection for the taxpayer and the Minister sent the
Notifications to Mr. Fawaz. Julisa Cheng, an officer of the
Minister, also testified that she phoned Mr. Fawaz and
advised him of the time requirement contained in the Act
for filing a Notice of Appeal to the Notification.
[18] Under the circumstances as outlined
above, the application is dismissed.
Signed at Vancouver, British Columbia, this 21st day of
January 2003.
J.T.C.C.
COURT FILE
NO.:
2002-1602(IT)APP
STYLE OF
CAUSE:
Lal Mansukh and
Her Majesty the Queen
PLACE OF
HEARING:
Vancouver, British Columbia
DATE OF
HEARING:
December 17, 2002
REASONS FOR JUDGMENT BY: The Honourable
Judge L.M. Little
DATE OF
JUDGMENT:
January 21, 2003
APPEARANCES:
For the
Applicant:
The Applicant himself
Counsel for the Respondent: Johanna
Russell
COUNSEL OF RECORD:
For the Applicant:
Name:
Firm:
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
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