Clayton v. The Queen, 2003 TCC 640 (Informal Procedure)

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Appeal heard on common evidence with the appeal of Franco Manocchio (2002-3538(IT)I) on August 7, 2003, at Montreal, Quebec.

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JUDGMENT

          The appeal from the assessment made under the Income Tax Act for the 1991 taxation year is dismissed.

Signed at Ottawa, Canada, this 8th day of September 2003.

Lamarre, J.

REASONS FOR JUDGMENT

Lamarre, J.

[1]      Whereas the appellant claimed a business loss of $13,468 in her 1991 income tax return and such loss was allowed on initial assessment dated August 21, 1992.

[2]      Whereas by reassessment dated August 16, 1995, the business loss initially allowed was subsequently disallowed.

[3]      Whereas on July 12, 1996, the appellant filed an application for extension of time to file an objection, which application was granted and the objection was considered filed on that date.

[4]      Whereas the Minister of National Revenue ("Minister") confirmed the reassessment by Notice of Confirmation on May 2, 2002, that is, almost six years after the Notice of Objection was filed.

[5]      Whereas the interest on the amount reassessed was increasing throughout that period.

[6]      Whereas the evidence showed that the appellant had invested in a tax shelter but had not filed with the Minister a prescribed form containing prescribed information, including the identification number for the tax shelter, as required by subsections 237.1(1) and 237.1(6) of the Income Tax Act ("Act").

[7]      Whereas the appellant is therefore foreclosed to claim a loss in relation to the investment in a tax shelter pursuant to subsection 237.1(6) of the Act.

[8]      Whereas it is admitted by the respondent that the Minister took six years to confirm the reassessment because he was waiting for the decision to be given in McKeown v. Canada, [2001] T.C.J. No. 236 (Q.L.), which case was similar to the present one and many other cases, without first advising the appellant of that decision.

[9]      Whereas the appellant is now prejudicially affected by such delay caused in part by the actions of the Minister in that the interest amount has increased accordingly.

[10]     Whereas the appellant testified that she had inquired many times of the Minister about the status of her appeal.

[11]     Wherefore, I have no other choice but to dismiss the appeal for the reasons set out in paragraphs 6 and 7 above. Nonetheless, I encourage the Minister to use his discretion pursuant to subsection 220(3.1) of the Act to determine whether a portion of the interest that has accumulated partially as a result of the Minister's actions during that six-year period should be waived.

Signed at Ottawa, Canada, this 8th day of September 2003.

Lamarre, J.