Application heard on February 24,
2015 at Ottawa, Canada
Before:
The Honourable Mr. Justice Randall S. Bocock
Appearances:
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For the Applicant:
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The Applicant himself
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Counsel for the Respondent:
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Tokunbo C. Omisade
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ORDER
UPON
application for an order extending the time within which notices of objection
may be filed relating to the assessments issued under the Excise Tax Act,
RSC, 1985, c. E-15 on August 13, 2002 for the reporting
period January 1, 1999 to May 31, 2002, and on July 8, 2004 for the reporting
period June 1, 2002 to August 31, 2002;
AND
UPON reading the materials files and hearing from the Applicant and counsel for
the Respondent;
FOR
THE REASONS ATTACHED, THIS COURT ORDERS that the application is dismissed.
Signed at Edmonton, Alberta, this 10th day of March 2015.
“R. S. Bocock”
REASONS
FOR ORDER
Bocock J.
[1]
Mr. Hughes applies to extend the period to
file notices of objection for assessments issued by the Minister under the Excise
Tax Act, RSC, 1985, c. E-15 (the “ETA”). The two assessments were issued on August 13, 2002 in
respect of the reporting period January 1, 1999 to May 31, 2002, and
on July 8, 2004 in respect of the reporting period June 1, 2002 to
August 31, 2002. Mr. Hughes filed his notices of objection and application
to extend time, some 9 years later on May 28, 2013 with the Canada Revenue
Agency (“CRA”) and, subsequently, with the Tax Court of Canada on May 30, 2013.
The Minister refused to accept the notices of objection and to grant the
application on the basis they were not filed within the time described in the ETA.
[2]
The following excerpted provisions from the ETA
reference the statutory framework for considering the application to extend:
Objection to
assessment
301. (1.1) Any person who has been assessed and who objects to the
assessment may, within ninety days after the day notice of the assessment is
sent to the person, file with the Minister a notice of objection in the
prescribed form and manner setting out the reasons for the objection and all
relevant facts.
…
Extension of time by
Minister
303. (1) Where no objection to an assessment is filed under
section 301, or no request has been made under subsection 274(6),
within the time limit otherwise provided, a person may make an application to
the Minister to extend the time for filing a notice of objection or a request
and the Minister may grant the application.
…
When order to be
made
303. (7) No application shall be granted under this section unless
(a) the
application is made within one year after the expiration of the time otherwise
limited by this Part for objecting or making a request under subsection 274(6),
as the case may be; and
(b) the
person demonstrates that
(i) within
the time otherwise limited by this Part for objecting,
(A) the
person was unable to act or to give a mandate to act in the person’s name, or
(B) the
person had a bona fide intention to object to the assessment or make the
request,
(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, and
(iii) the
application was made as soon as circumstances permitted it to be made.
[3]
Where the Minister denies the application, or
fails to respond, a taxpayer may, under parallel provisions, apply to the Tax
Court to file or object on similar terms: section 304 of the ETA.
[4]
Mr. Hughes explained his failure to file a notice
of objection prior to May 28, 2013. He indicates that he was in constant
communication with the officials during the 2002 period and that many “appeals” were in fact made to, in his words, “the
Ministry of Finance”. Mr. Hughes provides no evidence of a written notice
of objection, nor does he say he did not receive the Notices of Assessment
received on August 13, 2002 and July 8, 2004, respectively.
Mr. Hughes states that the Minister failed to return Mr. Hughes’
original documents related to the period 2002 - 2003. Mr. Hughes does not state
how or why that retained information would prove that his notice of objection
had been filed prior to the date of acknowledged receipt.
[5]
Counsel for the Respondent takes the position
that the statutory provisions of sections 301(1), 303(1), 303(7), 304(1), and
304(5) of the ETA are absolute and cannot be waived. Counsel agreed
there must be some evidence that the notice of reassessment was sent and that no
notice of objection or extension request was received within time under the ETA.
[6]
In examining the jurisprudence relevant to time
to object or to request an extension, the case of Canada v. Carlson,
2002 FCA 145 (“Carlson”) at paragraphs 13 and 14 provides as follows:
As this Court has
held on numerous occasions, when a taxpayer is unable to meet the deadline
prescribed by the Act, even by reason of a failure of the postal system,
neither the Minister nor the TCC can come to his help. (See Schafer v. Her
Majesty the Queen, [2000] FCJ 1480 (FCA); The Attorney General of Canada v. John F. Bowen, [1992] 1 FC 311 (FCA)). Hence, if a postal failure cannot save
a taxpayer, he will not be saved by his failure to grasp the significance of a
notice of assessment served on him.
As there is no
dispute that notice of assessment no. 7272 was sent by registered mail to the
respondent on August 17, 1993, and that the respondent received it within a few
days, his notice of objection was clearly served out of time. Since the
respondent did not apply for an extension of time before the end of November
1994, neither the Minister nor the TCC Judge could grant him the extension he
was seeking.
[7]
The unchallenged facts within the Respondent’s
filed affidavit show that the CRA sent the notices of assessment on the dates
indicated. Moreover, Mr. Hughes does not dispute that the notices of
assessment had been sent on the dates indicated by the Minister in the Amended
Reply, the supporting affidavit, or in the application. Mr. Hughes does
not dispute that he had received the notices of assessment shortly after those
particular dates. Instead, he contends he submitted many “appeals”
in response. No evidence was produced to suggest this and, as stated, the CRA
has no record of these.
[8]
While the jurisprudence within Carlson
references the Income Tax Act, jurisprudence of this Court and the
Federal Court of Appeal has developed which concludes that the same rules apply
to the ETA. Evidence that the notice of assessment was sent is
sufficient. Similarly, the misunderstanding of the import of a notice of
assessment, its potential non-receipt by mail interruption, or the delay
through inadvertence on the part of a taxpayer to file an objection does not
extend the time: Chomatas v. Her Majesty The Queen, 2013 TCC 319 at
paragraph 10; Grunwald v. Her Majesty The Queen, 2005 FCA 421 at
paragraphs 43 and 44; and, Sahibi v. Her Majesty The Queen, 2014 TCC 79
at paragraphs 25 and 26.
[9]
Cumulatively, such legal authorities, the
evidence provided by the Respondent that the notices of assessment were sent
and the absence of any evidence as to why Mr. Hughes may not have received the
notices (i.e. an incorrect address) are conclusive. Therefore, this Court lacks
any jurisdiction under section 304 of the ETA to grant the
application for an extension of time to file notices of objection in respect of
the assessments because Mr. Hughes is deemed to have received the notices
of assessment in 2002 and 2004. Accordingly, this application brought in 2013 is
dismissed.
Signed at Edmonton, Alberta, this 10th day of March 2015.
“R. S. Bocock”
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