Date:
20000208
Docket:
2000-2647-IT-APP
BETWEEN:
DANIELLE
SHÉRIDAN,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Reasons
for Order
Rip,
J.T.C.C.
[1]
Danielle Shéridan applied for an order extending the time
within which she could institute an appeal in respect of the
reassessment for the 1995 taxation year, which reassessment is
dated August 19, 1996.
[2]
On or about October 15, 1996, Ms. Shéridan served the
Minister of National Revenue (the "Minister") with a notice of objection to a
reassessment for 1995. The
Minister informed Ms. Shéridan, in a communication dated
January 22, 1999, that he was confirming the said reassessment
for 1995.
[3]
Subsection 169(1) of the Income Tax Act (the
"Act") provides as follows:
Where a taxpayer has served notice of objection to an assessment
under section 165, the taxpayer may appeal to the Tax Court of
Canada to have the assessment vacated or varied after
either
(a)
the Minister has confirmed the assessment or reassessed,
or
(b)
90 days have elapsed after service of the notice of objection and
the Minister has not notified the taxpayer that the Minister has
vacated or confirmed the assessment or reassessed,
but no
appeal under this section may be instituted after the expiration
of 90 days from the day notice has been mailed to the taxpayer
under section 165 that the Minister has confirmed the assessment
or reassessed.
[4]
The applicant did not file a notice of appeal in respect of the
reassessment for the 1995 taxation year within the time
prescribed by subsection 169(1) of the Act, that is,
not later than April 22, 1999.
[5]
A taxpayer who has not instituted an appeal under section 169 of
the Act within the time limit specified may apply to the
Tax Court of Canada for an extension of the time for
appealing.
[6]
The conditions governing such an application are stated in
subsection 167(5) of the Act, which reads as
follows:
(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.
[7]
Ms. Shéridan's application, dated June 8, 2000, was
received by and filed with the Court on June 12, 2000.
[8]
Ms. Shéridan and her husband, André Veilleux, had a
number of telephone discussions with representatives of Revenue
Canada-the predecessor of the Canada Customs and Revenue Agency
(the "Agency")-and in particular with Ms. Daure of the
collection service. Ms. Daure told them to apply to this Court
for an order extending the time for instituting an appeal from
the reassessment for the 1995 taxation year. Mr. Veilleux claims
that he faxed an application on August 31, 1999.
[9]
Ms. Daure testified that she and other officials had been in
contact with Mr. Veilleux and Ms. Shéridan from October 8,
1996, until June 28, 2000. On October 8, 1996, Mr. Veilleux asked
for information about filing an objection. On June 2, 1999, Ms.
Daure telephoned Ms. Shéridan with regard to taking legal
steps because payment was due, but Ms. Shéridan indicated
that she still wanted to appeal. On June 11, Ms. Daure spoke to
Mr. Veilleux; he was going to apply for an extension of the time
for instituting an appeal. On the same day, Ms. Daure asked Mr.
Veilleux for a copy of the notice of objection. He replied that
he would send her the notice within two weeks. On August 19, Ms.
Daure still had not received anything. There were other telephone
calls involving Mr. Boabel and Ms. Daure of the Agency
on the one hand and Mr. Veilleux and
Ms. Shéridan on the other hand. According to the
notes that Ms. Daure had with her, Mr. Boabel contacted
Revenu Québec on February 2 and 8, 2000, if I understand
correctly, to confirm that Ms. Shéridan had not objected
to a similar assessment made by Revenu Québec. Ms. Daure
also discussed the problem with the Agency's technical
adviser. There is no need to look at every conversation between
the appellant and her husband and Agency officials. Suffice it to
say that neither this Court nor the Agency received an
application for an extension of time prior to August 21,
2000.
[10]
Unfortunately, Mr. Veilleux made at least one mistake. It is true
that the address on the document dated August 31, 1999, is that
of this Court, but Mr. Veilleux tried to send the document to the
fax number of the Agency's Longueuil office. However, the
number for the Longueuil office is 928-xxxx, area code 450,
whereas Mr. Veilleux used the Montréal area code, that is,
514. The fax transmission report indicates that the fax was
received at (514) 928-xxxx. Mr. Veilleux accordingly thought
that the fax had been received by the Agency, but this was not
so. Apparently, it was received by an individual whose private
home number was (514) 928-xxxx. Neither the Court nor the Agency
received the fax. Mr. Veilleux testified that he usually uses the
514 area code and that, out of habit, he dialled 514 instead of
450.
[11] The
application for an extension of time was set down for hearing on
October 11, 2000. During the presentation of the evidence on
October 11, Mr. Veilleux at the earliest opportunity filed
the evidence showing that he had faxed Ms. Shéridan's
application to (514) 928-xxxx. He was certain that this number
was the Agency's number in Longueuil and that the Department
received the application, notwithstanding the fact that the
application was addressed to the Montréal office of the
Tax Court of Canada. The respondent denied receiving it. I
accordingly postponed the hearing of the application to my next
sitting in Montréal, on January 19, 2001.
[12] Mr.
Veilleux discovered the mistake with respect to the area code
before the hearing on January 19, 2001. Ms. Shéridan
testified that she was sure that the fax had been received by the
Agency. She had received confirmation on August 31, 1999, through
the transmission report, that the communication had been received
(see Exhibit I-1). She believed that the first appeal that she
had sent to the Court in August 1999 had been forwarded to the
right place and the right person.
[13]
However, the document that Ms. Shéridan had wanted to fax
to the Court was a Notice of Appeal, and not an application for
an extension of time, which was another mistake on her
part.
[14] It is
clear that Ms. Shéridan did not file her application for
an extension of the time for instituting an appeal within one
year after the expiration of the time limited by section 169 for
appealing. The last day on which Ms. Shéridan could apply
for an extension of time was April 21, 2000.
[15] I must
therefore dismiss her application.
Signed at
Ottawa, Canada, this 8th day of February 2001.
J.T.C.C.
Translation certified
true on this 20th day of November 2002.
Erich Klein,
Revisor
[OFFICIAL
ENGLISH TRANSLATION]
2000-2647(IT)APP
BETWEEN:
DANIELLE
SHÉRIDAN,
Applicant,
and
HER MAJESTY
THE QUEEN,
Respondent.
Application
heard on January 19, 2001, at Montréal, Quebec,
by
the
Honourable Judge Gerald J. Rip
Appearances
For the
Applicant:
The Applicant herself
Counsel for
the
Respondent:
Annick Provencher
ORDER
Upon application for an order extending the time within which an
appeal from an assessment made under the Income Tax Act
for the 1995 taxation year may be instituted;
And upon hearing what was alleged by the parties;
The application is dismissed.
Signed at
Ottawa, Canada, this 8th day of February 2001.
J.T.C.C.
Translation certified
true on this 20th day of November 2002.
Erich Klein,
Revisor
[OFFICIAL
ENGLISH TRANSLATION]
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