Docket: 2012-4583(IT)APP
BETWEEN:
ROBERT TOPPING,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on October 11, 2013 at Windsor, Ontario
By: The Honourable Justice
Judith M. Woods
Appearances:
|
For the
Applicant:
|
The
Applicant himself
|
|
Counsel for the Respondent:
|
Shane Aikat
|
____________________________________________________________________
ORDER
Upon application for an Order extending the time to
serve a notice of objection to assessments made under the Income Tax Act
for taxation years from 2007 to 2010, inclusive, the application is dismissed.
Signed at Toronto, Ontario this 30th day of October 2013.
“J. M. Woods”
Citation: 2013 TCC 346
Date: 20131030
Docket: 2012-4583(IT)APP
BETWEEN:
ROBERT TOPPING,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Woods J.
[1]
Robert Topping has brought an
application to extend the time for serving a notice of objection to assessments
made under the Income Tax Act for taxation years from 2007 to 2010,
inclusive.
[2]
The Crown submits that the
application should be dismissed because Mr. Topping did not satisfy the
legislative requirement set out in s. 166.2(5)(a) of the Act. This provision
requires that, as a condition for this Court to grant an extension of time, the
taxpayer must have previously applied to the Minister of National Revenue for
an extension within the time prescribed.
[3]
The relevant provisions are
reproduced below.
166.2 (5) When application
to be granted -
No application shall be granted under this section unless
(a) the application was made under
subsection 166.1(1) within one year after the expiration of the time otherwise
limited by this Act for serving a notice of objection or making a request, as
the case may be; and
[…]
166.1 (1) Extension of
time [to object] by Minister - Where no notice of objection to an
assessment has been served under section 165, nor any request under subsection
245(6) made, within the time limited by those provisions for doing so, the
taxpayer may apply to the Minister to extend the time for serving the notice of
objection or making the request.
[…]
(7) When order to be made - 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 Act for serving
a notice of objection or making a request, as the case may be; and
[…]
[4]
With respect to the 2010 taxation
year, Mr. Topping acknowledges that he did not apply to the Minister with
respect to this assessment, which was issued on October 29, 2012. Accordingly,
the application for this year should be dismissed. Mr. Topping was advised at
the hearing that it was not too late to file an application with the Minister
for the 2010 taxation year, and that the deadline for doing so was fast
approaching.
[5]
With respect to taxation years
from 2007 to 2009, the only correspondence that was received by the Minister
within the deadline was a letter dated October 17, 2010 (the “October letter”).
[6]
The October letter was addressed
simply to “Revenue Canada” without an address. The purpose of this letter is
not entirely clear on its face. It stated that the assessments are being
appealed, that Mr. Topping is working with his accountant and that they will
keep them informed. Mr. Topping testified that the letter was sent to an
official in the audit division with whom he had been dealing.
[7]
The question in this case is
whether the October letter should be considered as an application to extend
time to serve a notice of objection.
[8]
It is appropriate to consider this
issue generously in favour of the taxpayer, but I have concluded that the
October letter is so deficient that it cannot reasonably be considered as an application
to the Minister for an extension of time for purposes of s. 166.1 of the Act.
[9]
First, an application to extend
time is to be sent to the Chief of Appeals, who is in the Appeals Division. The
October letter was sent to the audit division which is a different division of
the Canada Revenue Agency (CRA). Further, the October letter does not clearly
indicate that it is intended as an application to extend time, or even as a
notice of objection. In such circumstances, the October letter cannot reasonably
be interpreted as complying with s. 166.1 of the Act: Pereira
v The Queen, 2008 FCA 264.
[10]
Mr. Topping submits that neither
his accountant nor the CRA provided him with sufficient guidance as to how to
make an objection. Unfortunately for Mr. Topping, the legislative requirements
regarding applications to extend time are strict and this Court is not able to
ignore them, even on grounds that the CRA is to blame.
[11]
The application will be dismissed.
Signed at Toronto, Ontario this 30th day of October
2013.
“J. M. Woods”
CITATION: 2013 TCC 346
COURT FILE NO.: 2012-4583(IT)APP
STYLE OF CAUSE: ROBERT TOPPING and
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Windsor, Ontario
DATE OF HEARING: October 11, 2013
REASONS FOR ORDER BY: The
Honourable Justice J.M. Woods
DATE OF ORDER: October 30, 2013
APPEARANCES:
|
For the
Applicant:
|
The Applicant himself
|
|
Counsel for the
Respondent:
|
Shane Aikat
|
COUNSEL OF RECORD:
For the Applicant:
Name: n/a
Firm:
For the
Respondent: William F. Pentney
Deputy
Attorney General of Canada
Ottawa, Ontario
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