Date: 20100127
Docket: A-37-09
Citation: 2010 FCA 30
CORAM: NOËL J.A.
PELLETIER
J.A.
LAYDEN-STEVENSON J.A.
BETWEEN:
PATRICK
NICHOLLS
Appellant
and
CANADA (REVENUE AGENCY) &
MINISTER OF NATIONAL REVENUE
Respondents
Heard at Toronto,
Ontario, on January 26,
2010.
Judgment
delivered at Toronto,
Ontario, on January 27, 2010.
REASONS FOR JUDGMENT BY: NOËL
J.A.
CONCURRED
IN BY: PELLETIER
J.A.
LAYDEN-STEVENSON
J.A.
Date:
20100127
Docket:
A-37-09
Citation:
2010 FCA 30
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
PATRICK NICHOLLS
Appellant
and
CANADA (REVENUE AGENCY) &
MINISTER OF NATIONAL REVENUE
Respondents
REASONS FOR JUDGMENT
NOËL J.A.
[1]
This is an appeal
from a decision of Barnes J. (the Federal Court Judge) dismissing the
appellant’s judicial review application against a decision of the Minister of
National Revenue (the Minister) dated March 28, 2008, refusing to reassess the
appellant’s 1995 taxation year, on the ground that the request for a
reassessment was received beyond the 10-year period set out in subsection
152(4.2) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.)
(the Act).
[2]
The appellant
contends that the Federal Court Judge misconstrued subsection 152(4.2) when he
held that his request to reassess was out of time. The appellant further
maintains that the Federal Court Judge erred in refusing to address other
issues which he raised in support of his application.
[3]
Dealing with the
first issue, the appellant maintains that the effective limitation took effect
on December 31, 2006 rather than December 31, 2005 (memorandum of the
appellant, paras. 45 to 50).
[4]
Subsection 152(4.2)
insofar as it is relevant to the dispute, reads:
|
(4.2) …, for the purpose of
determining, at any time after the end of the normal reassessment period of a
taxpayer who is an individual (other than a trust) or a testamentary trust in
respect of a taxation year, the amount of any refund to which the taxpayer is
entitled at that time for the year, or a reduction of an amount payable under
this Part by the taxpayer for the year, the Minister may, if the taxpayer
makes an application for that determination on or before the day that is ten
calendar years after the end of that taxation year,
(a) reassess tax, interest or
penalties payable under this Part by the taxpayer in respect of that year;
…
|
(4.2) […], pour déterminer,
à un moment donné après la fin de la période normale de nouvelle cotisation
applicable à un contribuable — particulier, autre qu’une fiducie, ou fiducie
testamentaire — pour une année d’imposition le remboursement auquel le
contribuable a droit à ce moment pour l’année ou la réduction d’un montant
payable par le contribuable pour l’année en vertu de la présente partie, le
ministre peut, si le contribuable demande pareille détermination au plus
tard le jour qui suit de dix années civiles la fin de cette année
d’imposition, à la fois :
a)
établir de nouvelles cotisations concernant l’impôt, les intérêts ou les
pénalités payables par le contribuable pour l’année en vertu de la présente
partie;
[…]
|
[Emphasis added by the respondent]
[5]
Being an individual,
the appellant’s taxation year is a calendar year (subsection 249(1)). Pursuant
to paragraph 37(1)(a) of the Interpretation Act, R.S.C. 1985, c.
I-21, a calendar year is defined as any period of twelve consecutive months
commencing on January 1. It follows that the appellant’s 1995 taxation year
began on January 1, 1995 and ended on December 31, 1995.
[6]
In order for the
Minister to be empowered to reassess the appellant’s 1995 taxation year, the
appellant would have had to make his request “on or before the day that is ten
calendar years after the end of that taxation year”, that is on or before January
1, 2006. The appellant filed his request in September 2006.
[7]
It follows that the
Federal Court Judge correctly held that his request was out of time.
[8]
As to the other
issues which the Federal Court Judge refused to consider, the appellant relies
on various provisions of the Act, to demonstrate that they are not statute
barred and can still be entertained by the Minister. However, the reason why
the Federal Court Judge refused to consider these issues has nothing to do with
the workings of the Act. Rather, the Federal Court Judge held that these issues
relate to distinct decisions made by the Minister (i.e., CCRA objection
confirmation November 10, 2005; CRA objection confirmation November 16, 2006;
CRA letter - denial of Allowable Business Investment Loss (ABIL) January 16,
2007; CRA last refund denial February 12, 2008), and that the time for seeking
judicial review of these decisions has expired. I can see no error in this
regard.
[9]
I would dismiss the
appeal with costs.
“Marc
Noël”
“I agree
J.D. Denis Pelletier J.A.”
“I agree
Carolyn Layden-Stevenson J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-37-09
(APPEAL FROM AN ORDER OF THE HONOURABLE
MR. JUSTICE BARNES OF THE FEDERAL COURT DATED DECEMBER 19, 2008, DOCKET NO.
T-660-08.)
STYLE OF CAUSE: PATRICK
NICHOLLS and CANADA (REVENUE
AGENCY) & MINISTER OF NATIONAL REVENUE
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 26, 2010
REASONS FOR JUDGMENT BY: Noël J.A.
CONCURRED IN BY: Pelletier J.A.
Layden-Stevenson J.A.
DATED: January 27, 2010
APPEARANCES:
|
Patrick Nicholls
|
FOR THE APPELLANT (ON HIS OWN BEHALF)
|
|
P. Tamara
Sugunasiri
Iris Kingston
|
FOR THE RESPONDENTS
|
SOLICITORS OF RECORD:
|
No Solicitor
|
FOR THE
APPELLANT (ON HIS OWN BEHALF)
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE
RESPONDENTS
|
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