Joel v Morassutti v. Minister of National Revenue, [1984] CTC 2401, 84 DTC 1374

Goetz, TCJ:—This is an application for an order requesting an extension of time in which to file an appeal for the taxpayer’s taxation years 1976 to 1979 inclusive.

Section 169 of the Income Tax Act sets out the time frames in which a notice of appeal must be filed.

Where a taxpayer has served notice of objection to an assessment under section 165, he may appeal to the Tax Review Board to have the assessment vacated or varied after either

(a) the Minister has confirmed the assessment or reassessed, or

(b) 180 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that he has vacated or confirmed the assessment or reassessed;

but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.

My jurisdiction to grant or refuse the application comes within the ambit of section 167.

Where no objection to an assessment under section 165 or appeal to the Tax Review Board under section 169 has been made or instituted within the time limited by section 165 or 169, as the case may be, for doing so, an application may be made to the Tax Review Board for an order extending the time within which a notice of objection may be served or an appeal instituted and the Board may, if in its opinion the circumstances of the case are such that it would be just and equitable to do so, make an order extending the time for objecting or appealing and may impose such terms as it deems just.

The respondent in his reply to application for extension of time states:

Whereas an Application has been filed on November 16, 1982 with this Honourable Board for an order extending the time within which appeals may be instituted from assessments of tax for the years 1976 to 1979, the Minister of National Revenue takes the following position:

(1) Notices of Reassessment were issued for the 1976 taxation year on April 23,

1981, and for the 1977, 1978 and 1979 taxation years on June 18, 1981,

(2) The Applicant failed to file notices of objection in respect of the said reassessment

for 1977, 1978 and 1979, within the time prescribed by the Income Tax Act,

(3) This Honourable Board extended the time for filing notices of objection for 1977, 1978 and 1979, by Order dated December 10, 1981,

(4) The reassessments for 1976 to 1979 were confirmed by Notification of Confirmation By the Minister dated August 3, 1982,

(5) The said Notification was sent to both the Applicant and to his solicitor, and was accompanied by Revenue Canada Taxation form TLA7,

(6) The said form TLA7 contained information as to the requirements of the Income Tax Act pertaining to the time frame within which further appeals could be instituted, and,

(7) The reasons in support of the Application do not disclose circumstances which are such that it would be just and equitable to make an order extending the time within which appeals may be instituted.

The appellant’s counsel filed his affidavit swearing in as follows:

I, MURDOCH MACKAY, of the City of Winnipeg, in Manitoba, Solicitor,

MAKE OATH AND SAY:

1. THAT I am the solicitor for Joel V Morassutti, the taxpayer herein.

2. THAT I did file on behalf of the said taxpayer Notices of Objection for the tax years 1976 to 1979, both inclusive, and did meet with the Department in Winnipeg subsequent thereto.

3. THAT sometime in August I received a copy of the Notification of Confirmation by the Minister, which document is dated August 3rd, 1982 and advised my client, the taxpayer, that we would have a hearing when the Tax Appeal Board sat in Winnipeg.

4. THAT sometime later I made enquiries as to when the said Board would be sitting in Winnipeg and ascertained that hearings would be held December 6th, 1982 and I assumed that I could arrange for the matter to be set down for that date.

5. THAT on starting to arrange for this hearing, I noticed that further steps had to be taken in that a further appeal had to be made before the hearing could be set down and that it was then one week late.

6. THAT the taxpayer is desirous of having a hearing and in the meantime is paying all assessments and thus it is just and equitable that the time be extended by less than two weeks to permit the issue to be heard.

7. THAT I believe the taxpayer has reasonable grounds for bringing such an appeal.

The appellant obtained an order from the Tax Review Board extending the time within which to file the notices of objection. This has no bearing on my decision. The Minister mailed a notification of confirmation relating to the applicant’s reassessments for the 1976, 1977, 1978 and 1979 taxation years. A form TLA7 was mailed to the applicant and his counsel on August 3, 1982. There were no assessments for the 1976, 1977, 1978 and 1979 taxation years. The TLA7 form is quite explicit as to the bases upon which a taxpayer may appeal to the Tax Review Board or to the Federal Court..

The reasons set forth in the affidavit of the applicant’s counsel do not satisfy me that it would be just and equitable to grant an order to extend the time within which appeals could be filed for the taxation years in question. The applicant and his counsel were given clear written instructions (the TLA7 form) as to paths and terms to follow in making appeal either to the Tax Review Board or the Federal Court. This, the applicant’s counsel failed to do. The application is dismissed.

Application dismissed.