Delmer
E
Taylor:—This
is
the
decision
on
a
hearing
at
which
James
W
Elliott
made
application
to
the
Tax
Review
Board
under
subsection
167(1)
of
the
Income
Tax
Act,
SC
1970-71-72,
c
63,
as
amended,
for
an
order
extending
the
time
within
which
a
notice
of
objection
to
income
tax
assessments
for
the
years
1975
and
1976
could
be
served
on
the
Minister
of
National
Revenue.
Section
165
of
the
Income
Tax
Act
provides
a
taxpayer
with
a
period
of
90
days
from
the
date
of
mailing
of
the
notice
of
assessment
in
which
to
serve
on
the
Minister
a
notice
of
objection
in
the
prescribed
form.
The
taxpayer
gave
evidence
on
his
own
behalf
and
was
represented
by
Mr
P
Smith
of
the
law
firm
Payne,
Smith,
Smith,
Campbell
&
Gazzola
of
Guelph,
Ontario.
Mr
Smith
also
provided
the
Board
with
some
particulars
on
the
reasons
for
the
delay.
The
notice
of
objection
which
the
Minister
was
not
prepared
to
accept
without
an
order
from
the
Board
was
dated
March
9,
1978,
and
related
to
an
assessment
dated
June
13,
1977.
The
taxpayer’s
income
tax
return
was
prepared
by
an
accountant,
and
upon
receipt
of
the
assessment
notice,
Mr
Elliott
took
it
to
his
lawyer’s
office
—
the
firm
of
Payne,
Smith
et
al,
where
it
was
essentially
the
responsibility
of
Mr
Payne.
The
taxpayer
was
encountering
marital
difficulties
and
part
of
his
disagreement
with
the
assessment
related
to
deductibility
of
alimony
or
maintenance
support
payments.
His
lawyer
needed
information
from
other
parties
regarding
these
payments
in
trying
to
deal
with
the
Department
of
National
Revenue.
The
taxpayer’s
employment
kept
him
out
of
town
frequently
and
made
contact
with
his
lawyer
difficult.
Due
to
his
own
holidays
and
other
matters,
Mr
Payne
also
had
difficulty
contacting
the
appropriate
officials
at
the
taxation
office
and
following
up
on
the
dispute.
In
argument,
counsel
for
the
taxpayer
conceded
that
although
some
responsibility
for
the
late
filing
might
be
attributed
to
the
advisers
engaged
by
the
taxpayer
to
look
after
his
income
tax
matters,
the
taxpayer
had
done
all
he
should
be
required
to
do
and
should
not
be
prevented
from
presenting
his
case
on
such
grounds.
Counsel
for
the
Minister
made
reference
to
the
relevant
section
of
the
Act
and
urged
that
the
Board’s
discretion
extended
only
to
situations
where
“the
circumstances
of
the
case
are
such
that
it
would
be
just
and
equitable
to
do
so”.
According
to
counsel,
the
significant
reason
for
late
filing
was
the
lack
of
attention
paid
to
the
matter,
and
while
he
could
understand
the
business
and
personal
pressures
which
had
been
enumerated,
these
were
normal,
met
and
overcome
by
all
taxpayers
and
their
advisers.
The
Minister
should
be
able
to
count
on
taxpayers
objecting
in
the
prescribed
form
within
the
time
limit,
barring
anything
really
unusual
or
extraordinary,
and
this
in
particular
where
such
professional
advisers,
accountants
and
lawyers
had
been
engaged
by
the
taxpayer.
In
this
case,
there
were
no
such
unusual
circumstances
which
would
warrant
consideration
since
nothing
beyond
the
taxpayer’s
direct
control
had
been
involved.
Counsel
pointed
out
that
there
was
little
in
the
way
of
a
legislative
record
on
this
particular
issue,
but
did
refer
to
the
decision
of
the
then
Chairman
of
this
Board,
Judge
K
A
Flanigan,
QC,
in
Marvin
Shore,
Trustee
of
the
Estate
of
Winegarden
Paving
Co
Limited,
a
Bankrupt
v
MNR,
[1974]
CTC
2193;
74
DTC
1132,
at
2194
and
1133
respectively:
In
the
circumstances
of
this
application,
I
do
not
consider
the
bankruptcy
to
be
an
extraordinary
occurrence,
.
.
.
On
all
the
evidence,
I
am
not
satisfied
that
this
is
a
case
where
discretion
should
be
exercised
in
favour
of
the
applicant,
and
the
application
is
therefore
dismissed.
In
dealing
with
this
matter,
the
Board
quotes
the
relevant
passage
from
subsection
167(5)
of
the
Act
which
determines
the
parameters
within
which
the
discretion
of
the
Board
under
subsection
167(1)
may
be
exercised:
(5)
When
order
to
be
made.
No
order
shall
be
made
under
subsection
(1)
or
(4)
(c)
unless
the
Board
or
Court
is
satisfied
that,
(i)
but
for
the
circumstances
mentioned
in
subsections
(1)
or
(4),
as
the
case
may
be,
an
objection
or
appeal
would
have
been
made
or
taken
within
the
time
otherwise
limited
by
this
Act
for
so
doing,
(ii)
the
application
was
brought
as
soon
as
circumstances
permitted
it
to
be
brought,
and
(iii)
there
are
reasonable
grounds
for
objecting
to
or
appealing
from
the
assessment.
In
the
instant
case,
the
Board
is
asked
to
accept
that
the
employment
patterns
and
personal
dislocations
of
the
taxpayer
and
his
lawyer
prevented
appropriate
action
being
taken
during
a
90-day
period,
and
apparently
continued
to
inhibit
it
for
about
a
further
six
months.
It
would
seem
to
me
that
the
interpretation
placed
upon
the
circumstances
by
counsel
for
the
Minister
is
more
plausible
—
that
the
matter
did
not
receive
the
attention
it
warranted
(whether
of
the
taxpayer
or
his
advisers),
and
that
no
adequate
explanation
of
the
delay
has
been
presented.
The
issue
involved
here
is
the
use
of
a
simple
administrative
section
of
the
Act,
and
cannot
be
regarded
as
similar
to
the
application
of
penalty
provisions
under
section
163
of
the
Act
in
which
the
courts
have
shown
reluctance
to
burden
the
taxpayer
with
the
results
of
alleged
acts
of
omission
or
commission
by
his
agent.
The
application
is
dismissed.
Application
dismissed.
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