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Citation: 2003TCC679
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Date: 20030919
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Docket: 2003‑2126(IT)APP
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BETWEEN:
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PIERRE SAINE,
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Applicant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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[OFFICIAL ENGLISH
TRANSLATION]
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REASONS FOR ORDER
Dussault, J.
[1] The applicant
seeks an order to extend the time within which he may institute appeals from
assessments made under the Income Tax Act ("Act") for
the 1992, 1993 and 1994 taxation years.
[2] In his reply to
the application, the Deputy Attorney General of Canada states the
following at paragraphs 1 to 7:
[TRANSLATION]
1. On March 15, 1996, the Minister of National Revenue
(hereinafter the "Minister") sent the applicant a notice of
reassessment for the 1992 taxation year.
2. On or around April 30, 1997, the applicant served notice
on the Minister of his objection to the reassessment dated March 15, 1996,
for the 1992 taxation year.
3. On February 23, 1999, the Minister sent the applicant
notices of reassessment for the 1993 and 1994 taxation years.
4. On or around March 1, 1999, the applicant served notice on
the Minister of his objection to the reassessments dated February 23,
1999.
5. By registered letter dated April 8, 2002, the Minister
informed the applicant that he had confirmed the reassessments dated
March 15, 1996, for the 1992 taxation year and dated February 23,
1999, for the 1993 and 1994 taxation years.
6. The applicant did not institute appeals in respect of the
reassessments, confirmed on April 8, 2002, to the Tax Court of Canada
within the time provided for by subsection 169(1) of the Income Tax Act
(hereinafter the "Act"), which ended on July 7, 2002.
7. On June 10, 2003, the applicant filed an application to
extend the time to appeal to the Tax Court of Canada in respect of the notices
of reassessment made for the 1992, 1993 and 1994 taxation years.
[3] The applicant
admitted these facts but moreover added that this recitation was not exhaustive
since there had been a "cascade" of various assessments starting in
1994 and ending in 2002. In fact, the final assessment for the 1992 taxation
year was made on March 15, 1996, and the final assessments for the 1993
and 1994 taxation years were made on February 23, 1999. The applicant
objected to those assessments in due time, and those three assessments were
confirmed on August 8, 2002.
[4] However, the
applicant contends that he did not receive the notice of confirmation dated
April 8, 2002, sent by registered mail (Exhibits I‑1, I‑2
and I‑3). And yet his spouse, Chantal Raymond, accepted the letter and signed
the acknowledgement of receipt. The applicant stated that he had left the
family home on Querbes
Street in Outremont in January 2002 and that in
April 2002 he was living at his mother's home. First, he said that his spouse
had not given him the notice of confirmation and then said that it was possible
that she had given it to him but that he could not confirm it.
[5] The applicant
also said that he had not received a letter dated February 8, 2002, from the Appeals
Division informing him of the decision made by the authorities to confirm the
assessments in issue.
[6] In his testimony,
Charles Lemire,
an appeals officer, said that a test case in a similar matter, McKeown v.
Canada, [2001] T.C.J. No. 236 (Q.L.), had already been before the Tax
Court of Canada and that the case of the applicant, who had not yet instituted
an appeal, had been put on hold. Mr. Lemire said he had first been in
contact with the applicant in June 2001, then in July that same year, namely,
to answer his questions. The authorities decided to confirm the assessments in
the applicant's case eight to ten months after the decision in McKeown,
supra, and that decision was then indicated in the aforementioned letter
dated February 8, 2002, in which the applicant was given 30 days to
submit his comments. Since no news was received from him when that period had
expired, the assessments were confirmed 30 days later, on April 8,
2002, and the notice was sent by registered mail.
[7] Daniel Zane,
a collection officer with the Canada Customs and Revenue Agency (the
"CCRA"), contacted the applicant's accountant, a certain Mr. Létourneau, on
November 13, 2002. Mr. Létourneau told him that the applicant had not
received the notice of confirmation dated April 8, 2002. It was
Mr. Létourneau who informed Mr. Zane that the Querbes Street address was no longer valid
and gave him the new address on Laurier Street West. After receiving confirmation of
Mr. Létourneau's mandate, Mr. Zane faxed him a copy of the letter of
intent dated February 8, 2002, and the notice of confirmation of the
assessments dated April 8, 2002.
[8] In his testimony,
the applicant stated that he had contacted a certain Ms. Matteau of the
CCRA in November or December 2002. She told him to [TRANSLATION] "put together
a file ". The applicant said he had looked for his documents in order
to prepare a complete file, which would have taken him a lot of time since the [TRANSLATION] "records were
scattered". That file was entered in evidence by the applicant
(Exhibit A‑1). It essentially consists of letters the applicant sent
to various CCRA employees in 1994 providing his comments on his research and
development project.
[9] The file prepared
by the applicant was forwarded to Mr. Lemire, the appeals officer, in May
2003. It was he who then contacted the applicant on May 23. The applicant wanted
to put the matter before the court of competent jurisdiction. Mr. Lemire
therefore told him to institute an appeal and returned him the file given.
[10] The application
for an extension of time was filed with the Tax Court of Canada on
June 10, 2003.
[11] First, it appears
that the applicant did not give CCRA notice of his change of address before
November 13, 2002, and that his accountant did so for him in his
communication with Mr. Zane.
[12] Second, the notice
of confirmation dated April 8, 2002, was sent to the applicant in the
regular manner at his address last known to CCRA. Moreover, his spouse took
delivery and signed the acknowledgement of receipt.
[13] The applicant is
in fact not certain whether his spouse gave him the notice of confirmation in
April 2002. One thing that is certain, however, is that Mr. Zane sent the
notice again, to the applicant's accountant, Mr. Létourneau, on
November 14, 2002. I note here that, like all notices of confirmation,
that notice ends with the following paragraph:
[TRANSLATION]
If
you disagree with this decision, you may appeal to the Tax Court of Canada. Information
on how to proceed is attached.
[14] Counsel for the
respondent claims that the applicant, who did not institute an appeal within
the 90‑day period following mailing of the notice of confirmation, also
did not demonstrate that the application for an extension of time to do so was
made as soon as circumstances permitted.
[15] I agree. Although
the applicant still appeared to want to continue his efforts with CCRA
employees in November or December 2002, he was in a position to appeal to the
Court as of November 14 of that year. It can certainly not be concluded
from the fact that he waited nearly seven months in order to do so that
the application was made as soon as circumstances permitted, as required under
subparagraph 167(5)(b)(iii) of the Act.
[16] The application is
accordingly dismissed.
Signed at Ottawa, Canada, this 19th day of September 2003.
Dussault, J.
Translation certified true
on this 5th day of August 2004.
Sophie Debbané, Revisor
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