|
Citation: 2003TCC613
|
|
Date: 20030904
|
|
Docket:
2003-2185(IT)APP
|
|
|
|
BETWEEN:
|
|
|
|
VIET HUNG NGUYEN,
|
|
Applicant,
|
|
and
|
|
|
|
HER MAJESTY THE QUEEN,
|
|
Respondent.
|
|
|
|
[OFFICIAL ENGLISH TRANSLATION]
|
REASONS FOR ORDER
Dussault, J.
[1] The applicant
filed an application to extend the time for instituting an appeal from
assessments made under the Income Tax Act ("Act") for
the 1997, 1998 and 1999 taxation years.
[2] The application
was filed on June 16, 2003.
[3] As a result of
the applicant's objection, reassessments were made on June 7, 2002, for
the 1997 and 1998 taxation years.
[4] With respect to
the 1999 taxation year, a reassessment was made on November 1, 2002. The
applicant served notice on the Minister of National Revenue of his objection to
that assessment on November 8, 2002. The assessment was confirmed on
January 2, 2003.
[5] Under
subsection 169(1) of the Act, the 90‑day period for
instituting an appeal from the assessment elapsed on September 5, 2002,
for the 1997 and 1998 taxation years and on April 2, 2003, for the 1999
taxation year.
[6] The respondent
contends that the applicant did not meet any of the conditions stated in
subparagraphs 167(5)(b)(i) to (iii) of the Act, which provide as
follows:
(5) When
order to be made.
No order shall be made
under this section unless
(a) ...
(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) ...
[7] On June 6,
2001, the applicant filed an amended return for the 1998 taxation year. On
July 12, 2001, he filed an amended return for the 1997 taxation year.
However, he claims that those returns were not considered and that his bank
accounts were seized in July 2001.
[8] In August and
September 2001, the applicant says he met with a collection officer on two
occasions. He also says he met with the auditor. He said he had been looking for
documents or information to resolve the "problem".
[9] The appellant argues
that the seizures by the Canada Customs and Revenue Agency left him in a
depressive state and that he had also had to deal with family problems. In
addition, in April 2002, it was apparently discovered that his spouse was
suffering from cancer.
[10] In his testimony,
the appellant also asserted that he had been unemployed in the summer of 2002
and that he had started working again in November of that same year.
[11] In response to the
applicant's objection, reassessments for the 1997 and 1998 taxation years were
made on June 7, 2002. The 90‑day period for instituting an appeal
elapsed on September 5, 2002. He did not decide to institute an appeal
until June 6, 2003, some 284 days, or more than nine months,
later. This very long delay was not justified in any way. It is difficult to
conclude that the applicant was unable to act during that entire period when he
very quickly, in fact on November 8, 2002, served notice of his objection
to the assessment made on November 1, 2002, in respect of the 1999
taxation year.
[12] According to his
own testimony, the appellant went back to work in November 2002 and worked
regularly from January until April 2003. The time to appeal for the 1999
taxation year elapsed on April 2, 2003. He provided no explanation that
would allow me to conclude that, during that period, he was unable to act or to
instruct another to act in his name, or that, during the same period, he had a bone
fide intention to appeal for the 1999 taxation year.
[13] In short, I find
that the applicant did not demonstrate that his application in respect of the
1997 and 1998 taxation years was made as soon as circumstances permitted.
[14] As to the 1999
taxation year, I find that he did not show that, within the time otherwise
limited for appealing, he was unable to act or to instruct another to act in
his name, or that he had a bone fide intention to appeal.
[15] Accordingly, the
appeal is dismissed.
Signed at Ottawa, Canada, this 4th day of September 2003.
Dussault, J.
Translation certified true
on this 20th day of August 2004.
Sophie Debbané, Revisor
Email this Content