Robert Douglas Batey v. Minister of National Revenue, [1986] 1 CTC 2439, 86 DTC 1294

Taylor, T.C.J.:—This is an application for an extension of time within which to file notices of objection, to assessments, as provided for under section 167 of the Income Tax Act, S.C. 1970-71-72, c. 63, as amended. It should first be noted that that there is no such clearly identifiable “application,” but a letter dated June 11, 1985 was regarded by the appellant as filling that role. That letter entered as Exhibit A-1 reads as follows:

June 11, 1985

London, Ontario

Tax Review Court,

Ottawa, Ontario

K1A 0L8

Attention Registrar; (sic)

Re: Bonnie J. Batey

18 Algonquin Crescent

London, Ontario

NSW 1N4

Notice of Objections

1979-1980-1981

I am submitting copies of Amended Notice of Objections covering above years and we are appealing that you will review said documents and allow the file of objections to be opened and discussed further

Awaiting your reply

Yours respectfully

(Signature)

R. Batey,

Husband & agent for

the taxpayer

The “amended” notation in the letter arose, according to Mr. Batey because he stated he had indeed filed many months earlier original notices of objection. He provided no proof of this, and Revenue Canada had no record of its receipt.

At the hearing Mr. Batey produced evidence that he had indeed mailed — by registered mail — that letter and its attachments to the address indicated. There is however no record in the Tax Court of its receipt about that time. The assessment in question was dated April 24, 1984, and one year and 90 days therefrom (section 167 of the Act) would extend only to about July 24, 1985. The letter (Exhibit A-1) was eventually received at the Tax Court on August 26, 1985, from Revenue Canada together with the following covering letter Exhibit A-3, from the Chief of Appeals:

DISTRICT OFFICE LONDON TAXATION CENTRE

DATE July 5, 1985

Mr. Robert Douglas Batey

18 Algonquin Crescent

London, Ontario

NSW 1N4

Re:

Notice of Objection dated June 8, 1985 in respect of assessment for the taxation years 1979, 1980, 1981

The above Notice of Objection was not submitted within the prescribed time limit of 90 days from the day of mailing of the Notice of Assessment and cannot be accepted as valid under the Income Tax Act.

You may, however, apply to the Tax Court of Canada for an extension of time to file your Notice of Objection.

No special form is required, simply:

(A) Set out in writing the reasons why it was not possible to file a Notice of Objection within the prescribed time limit.

(B) Send three copies of the above statement and of the Notice of Objection to:

The Registrar

Tax Court of Canada

200 Kent St.

Ottawa, Ontario

K1A 0M1

Application must be made as soon as possible and not later than one year from the 90-day time limit for the mailing of a Notice of Objection.

(Signature)

R. W. Dalgleish

Chief of Appeals Division

Between the dates of June 11, 1985 (or June 8, 1985 if one takes the date used on the attached already-late notices of objection), and August 22, 1985, one other relevant instance should be noted. On July 5, 1985 (sic), the Minister sent to the appellant the following (entered as Exhibit A-2):

August 22, 1985

Mr. Robert D. Batey,

18 Algonquin Crescent,

London, Ontario.

NSW 1N4

Appeals Divison

R. Williams

Dear Sir:

Re:	Notices of Objection dated June 8, 1985
	Taxation Years — 1979, 1980, 1981

This is to advise you that the above Notices of Objection have been referred to the Tax Court of Canada as a request for an extension of time.

There has been some delay because of your incorrect application and address.

The correct address is:

200 Kent Street.

Ottawa, Ontario

K1A 0M1

You will be receiving an acknowledgement from the Tax Court in due course.

Yours truly,

(Signature)

for Chief of Appeals

The local Revenue Canada office was aware of Exhibit A-3, because Mr. Batey had also taken a copy of it, and its attachments, to that office in June 1985, about the same time as he mailed it to the “Tax Review Court”. He had taken no further action after the receipt of Exhibit A-2 above because he knew he had already registered and mailed the required documents in June 1985.

As I see the situation, while Exhibit A-3 was not received by the Tax Court within one year and 90 days of the assessment notices, it cannot be said that Mr. Batey failed in the fulfilment of his obligations in the matter. Mr. Batey was not aware until the hearing that the Tax Court had not received the material addressed to the “Tax Review Court”, since (as a result of the same material having been sent by Revenue Canada — see above) he had been instructed to appear in Court for his hearing. He did not know what could be the basis of the Minister’s opposition to granting the application. In addition the very wording of the letter from Revenue Canada to the Tax Court (Exhibit A-3) — ‘‘as a request for an extension of time” should in itself validate Mr. Batey’s position in this matter. Paragraph 167(5)(a) of the Act has been complied with to my satisfaction.

With regard to the more technical process to be found in paragraph 167(5)(c) of the Act, I do not believe that under this set of circumstances they (sic) should form a barrier to granting the application, although under other circumstances the delays which can be seen in Mr. Batey’s actions would be a distinct impediment. This is one set of circumstances in which the Court finds it would be “just and equitable” (subsection 167(1)) to grant the order extending the time required.

The application is granted.

Application granted.