REASONS
FOR JUDGMENT
Bédard D.J.
[1]
On October 17, 2014, the applicant filed an
application under the Excise Tax Act, Part IX (the “ETA”), for an
extension of time to file a notice of objection to an assessment, notice of
which is dated September 27, 2013, and bears number F‑047557, made
by the respondent through the Minister of National Revenue (the “Minister”) for
the period from April 30, 2011 to October 25, 2012 (“the application for
an extension of time”).
[2]
The issues are as follows:
(a)
Is the assessment deemed to have been received
by the applicant on September 27, 2013 in accordance with subsection 334(1) of
the ETA?
(b)
Have the criteria set out in paragraph 303(7)(b)
of the ETA been met?
The facts
[3]
The address indicated on the notice of
assessment is 154 Rue Jean-Paul-Lemieux in Notre-Dame-de-l’Île-Perrot, which
was the last known address of the applicant at the time that the assessment was
made (the “address”).
[4]
Indeed, the applicant did not report any change
of address before September 27, 2013.
[5]
The assessment was sent to the address by
registered mail through Canada Post.
[6]
On October 2, 2013, the acknowledgement of
receipt of the assessment was signed by the applicant’s wife. It should be
noted that the evidence shows that the applicant was no longer living with his
wife at that time as they were in the midst of divorce proceedings.
[7]
On November 8, 2013, a letter entitled
“Request for payment” (the “letter”, Exhibit I‑3), addressed to the
applicant by the Direction générale du recouvrement (collections branch) of the
Agence du revenu du Québec (the “Agency”) and indicating that the applicant
owed $183,042.47, was sent by regular mail to the applicant.
[8]
On November 29, 2013, the applicant and
Jonathan Lamond, a collection officer with the Agency, had a telephone
conversation regarding a letter that the applicant had received from the
Agency.
[9]
On June 3, 2014, the applicant filed with
the Minister an application for an extension of time to file a notice of
objection to the assessment. The time period for filing a notice of objection
with the Minister had expired on December 26, 2013.
[10]
On September 18, 2014, the Minister sent
the applicant a notice informing him that he could not grant his application
for an extension of time.
[11]
On October 17, 2014, the applicant filed
the application for an extension of time with this Court.
Position of the applicant
[12]
The applicant essentially submits that he was
unable, within the time allowed for filing a notice of objection (which expired
on December 26, 2013), to act or to give a mandate to act in his name
since he only became aware of the assessment in May 2014, as his wife had not given
him the notice of assessment. Furthermore, he argues that he acted diligently
to file with the Minister an application for an extension of time as soon as he
was aware of the assessment.
Applicant’s testimony
[13]
The applicant’s testimony may be summarized as
follows:
(a)
At the time the assessment was sent to him, he
was in the midst of divorce proceedings and only his wife was living at the
address. His wife had never given him the notice of assessment and the letter.
I would note that the applicant testified that his wife had however given him
the correspondence from the Minister regarding the corporations of which he was
a director and for whose unpaid tax liabilities he is being held responsible under
the assessment.
(b)
It was only in May 2014 that he became aware of
the assessment. Indeed, he was dumbfounded to learn at the beginning of May of
that year that his bank accounts had been seized by the Minister. Since he did
not understand why they had been seized, he met with Mariusz Wojcik, a
collection officer with the Agency, to get some explanations. Mr. Wojcik apparently
not only informed him of the assessment, but also gave him a copy of it.
(c)
In September 2013, he had two telephone
conversations with Mr. Wojcik. According to the applicant, Mr. Wojcik
was basically trying to obtain information about the operations of Laboratoires
Bio‑Botanical inc., of which he was a director. The applicant’s testimony
on this point is worth quoting:
JUDGE BÉDARD: And the
second time was also all about the company, trying to get information about the
company. That’s it?
Mr. ESMEZYAN: Yes.
JUDGE BÉDARD: Okay.
Me SUMBULIAN: Okay. If I
were to ask you what did he tell you -- what did he tell you during those
conversations?
Mr. ESMEZYAN: There was a
form -- uhm -- I told him that -- I explained as much as I could, in terms of
Bio-Botanical’s bankruptcy and how it was touched by Chef Woo Noodles and
Pinnacle Spices, and the accounting wasn’t done properly when the trustees came
and took ---
Me SUMBULIAN: Uhm, Mr.
Esmezyan ---
Mr. ESMEZYAN: -- all the
paperwork.
Me SUMBULIAN: -- my
question wasn’t: “What did you tell him?” I’m asking you: what did he tell you?
Did he -- like what did he –
Mr. ESMEZYAN: Well, he
told ---
Me SUMBULIAN: -- tell you
about the situation, why he was ---
Mr. ESMEZYAN: Yes. He told
---
Me SUMBULIAN: -- calling
you?
Mr. ESMEZYAN: He told me
that the company had all the money to development (phon.), in terms of
GSTs/QSTs and deductions at the source, which I explained also that those
numbers were incorrect and he said: “Well, these debts have to be paid, if it’s
not through the company, it’s gotta be through you guys, Barry Abugov or
yourself.” I told him -- I said: “Well, I said, we’re not -- I’m not running
away. Whatever the truth is, I’m after only for the truth.” And that’s how we
hung up.
Me SUMBULIAN: Okay. Were
there any discussions concerning the assessment taken against you?
Mr. ESMEZYAN: There was
nothing discussed against me, it was always the company, and when he mentioned
that “well, if the company doesn’t have money and -- and -- and you guys are
not filing things properly, then, you know, you will be responsible”, and I
told him, I said: “I’m not running away. I’m here.”
JUDGE BÉDARD: So he told
you that you will be responsible?
Mr. ESMEZYAN: Yes.
JUDGE BÉDARD: That’s it?
(d)
On November 29, 2013, the applicant spoke
with Mr. Lamond from the Agency regarding a letter he had received from
the Minister. Mr. Lamond suggested that he speak instead with Mr. Wojcik,
who was responsible for his collection file. I note that the applicant
specified that the letter in question in this conversation was not the letter
of November 8, 2013, since he had not received it (see paragraph 13(a)
above). The applicant’s testimony regarding the nature of the other letter is
also worth quoting:
Mr. ESMEZYAN: Just to be
listened, you know.
Me SUMBULIAN: Mr. Esmezyan,
you heard the testimony of the representative of Revenu Québec. He said he had
a conversation with you in November 2013.
Mr. ESMEZYAN: Yes.
Me SUMBULIAN: And he said
that you -- you told them you received a document from Revenu Québec. Could you
please explain, as far as you know, what is he referring to?
Mr. ESMEZYAN: I received
many documents and I filled out the blanks because they had no clue who was the
President, who was the officers, what was Bio-Botanical. There was a major
bankruptcy in 11,000 Baie d’Urfé, this is 700,000 square foot of industrial
space, three major companies were bankrupt. Bio-Botanical was the smallest and
when the trustee came, he took all the paperwork. Revenu Québec and Revenue
Canada had no clue what was going on. I filled many applications for them. As I
---
The law
[14]
The ETA provides that a taxpayer may file a
notice of objection to an assessment within 90 days after the day the notice of
assessment was sent.
[15]
Subsection 335(10) of the ETA provides that the
day of mailing of a notice of assessment is presumed to be the date appearing
on the notice. Moreover, subsection 334(1) of the ETA adds a second
presumption, namely, that a notice of assessment is deemed to have been
received by the person to whom it was sent on the day it was mailed.
[16]
Parliament has created an absolute presumption that
the notice of assessment is received as soon as it is mailed. In order for this
absolute and irrebuttable presumption of receipt of the notice of assessment at
issue to apply, the tax authorities have only to show that the rules respecting
mailing that are applicable in the department were followed. Thus, non-receipt
of the notice of assessment cannot be used as grounds for an extension of time
(see Abraham v. The Queen, 2004 TCC 380; Schafer v. Canada,
[1998] T.C.J. No. 459 (QL); Kovacevic v. Canada, 2003 FCA 293; Nasha
Properties Ltd. v. Canada, [1998] T.C.J. No. 99 (QL)).
[17]
The Federal Court of Appeal decision in Schafer
v. Canada, [2000] F.C.J. No. 1480 (QL), puts this choice by Parliament
in proper context, although not without decrying its rigidity and its
consequences in terms of the taxpayer’s loss of recourse. However, the Federal
Court of Appeal acknowledged that Parliament is entitled to adopt such
presumptions, and it applied them.
[18]
Moreover, it is up to the taxpayer to keep the tax
authorities informed of his mailing address and provide them with accurate contact
information, as indicated by the Federal Court of Appeal in Denelzen v.
Canada, [1998] F.C.J. No. 1450 (QL).
Conclusion
[19]
As mentioned above, non-receipt of a notice of
assessment cannot be used as grounds for an extension of time. Regardless, the
applicant has not satisfied me that he did not receive the notice of assessment
and the letter, given his testimony that his wife had nonetheless given him the
correspondence from the Minister regarding the corporations of which he was a
director and for whose tax liabilities he is being held responsible under the
assessment. Only the testimony of his wife and the filing in evidence of the
letter that was the basis of his telephone conversation with Mr. Lamond
could have made it possible to dispel my doubts about the applicant’s
credibility. The applicant could have produced that evidence, but he did not do
so. I infer from this that such evidence would have been unfavourable to him.
[20]
For these reasons, the application is dismissed.
Signed at Bromont, Quebec, this 26th day of August 2015.
“Paul
Bédard”
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