Henry v. The Queen, docket 97-2283-GST-I (Informal Procedure)

Date: 19980728

Docket: 97-2283-GST-I

BETWEEN:

ROBIN HENRY,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order

McArthur, J.T.C.C.

[1] The Respondent's counsel brought a motion for an order dismissing the appeal on the basis that the Appellant did not serve a Notice of Appeal within the time limited by section 306 of the Excise Tax Act (ETA) nor did he make an application for extension of time as permitted by section 305 of the ETA.

[2] At the time, I was not prepared to make a decision without carefully reviewing the law and proceeded with the hearing of the appeal. The Respondent relied on the decision in A.G. Canada v. Bowen, 91 DTC 5594 (F.C.A.) (Bowen). I advised the Appellant that, had the law not evolved since Bowen, the Respondent's motion would be granted. I have sought to find favour in the Appellant's position but cannot and must grant the Motion dismissing the appeal.

Facts

[3] The facts are not in dispute. The Respondent sent the Notice of Decision to the Appellant, dated March 26, 1997, to the same address as indicated by the Appellant on his Notice of Objection. The 90th day after this date was June 24, 1997. By letter June 25, 1997 (the 91st day) the Appellant appealed the assessment. It was received by this Court on June 27, 1997. The Appellant explained that he had been out of town when the notice of March 26, 1997 arrived at his addressed and was eventually returned to the Respondent. The Appellant contacted Revenue Canada in April 1997 advising them he had not received their decision and a duplicate copy, with the same March 26, 1997 date, was sent to him which he acknowledged receiving towards the end of April 1997.

Analysis

[4] Though the main issue is whether the motion will be successful, I have chosen to approach the problem from two directions: first, does the Court have the jurisdiction to accept the Notice of Appeal as being filed on time; and second, does the Court have the discretion to treat the Notice of Appeal as an application for extension of time to file a Notice of Appeal.

Is the Notice of Appeal on time, and if no, does the Tax Court of Canada have jurisdiction to accept it?

[5] The relevant legislation reads as follows:

"306. Appeal

A person who has filed a notice of objection to an assessment under this Subdivision may appeal to the Tax Court to have the assessment vacated or a reassessment made after either

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

(b) one hundred and eighty days have elapsed after the filing of the notice of objection and the Minister has not notified the person that the Minister has vacated or confirmed the assessment or has reassessed,

but no appeal under this section may be instituted after the expiration of ninety days after the day notice is sent to the person under section 301 that the Minister has confirmed the assessment or has reassessed." (emphasis mine)

[6] The 90-day limitation period kicks in as soon as the appropriate notice is sent to the taxpayer. Subsection 301(5) identifies the notice requirements that the Minister must have satisfied before the limitation period could commence. It reads:

"301(5) Notice of decision

After reconsidering an assessment under subsection (3) or confirming an assessment under subsection (4), the Minister shall send to the person objecting notice of the Minister's decision by registered or certified mail."

[7] In Bowen (supra), the case involved an appeal under the Income Tax Act subsection 165(3) of the ITA, as it then was, required the Minister to provide notice of confirmation of an assessment by "registered mail". Reliance on Bowen (supra) is appropriate in this case as section 169 of the ITA, worded similarly to 306 of the ETA. Section 169 sets out a limitation period for filing a Notice of Appeal to the Tax Court as 90 days "from the day notice has been mailed".

[8] The Federal Court of Appeal decision in Bowen (supra), delivered orally per curiam by Stone J.A., reasoned that the plain meaning of subsection 165(3) and section 169 of the ITA could not be ignored. Parliament had required no additional responsibility to inform a potential appellant other than the notification by registered mail.

[9] The Respondent has satisfied the Court that the notice was mailed in accordance with the statutory requirement. The Appellant has filed his Notice of Appeal late and the Court does not have the jurisdiction to hear the appeal.

[10] The Tax Court has, since Bowen (supra), uniformly determined that the Respondent is not required to inform, personally serve or otherwise notify the Appellant of assessments, reassessments or decisions except as specifically stated in the ITA. In all cases where a taxpayer has not been available to receive a notice in time to file an appeal, whether because they were out of the country, had changed their mailing addresses or otherwise, the responsibility is placed squarely on the shoulders of the Appellant to have informed the Minister of an alternative address or agent.

Can the Notice of appeal be construed as an application for Extension of Time?

[11] Section 305 of the ETA permits the Appellant to make application for an extension of time to file a Notice of Appeal as should have been filed under section 306 of the ETA.

[12] Section 305 of the ETA mirrors the current section 167 of the ITA. Section 167 of the current ITA is a revision that came into effect January 17, 1992 and there is little case law dealing with it. Therefore, I have referred to the cases involving the pre 1992 ITA. The enactments under the ETA closely mirror those in the current ITA in regard to appeals and applications for extension of time.

[13] Pursuant to subsection 305(1) of the ETA, the Appellant could have filed an application for an extension of time to file the Notice of Appeal. Under the old section 167 of the ITA the Tax Court had a wider discretion in granting applications "if in its opinion the circumstances of the case are such that it would be just and equitable to do so". Even with such an apparently wide discretion Sarchuk T.C.J., in M.N.R. v. Minuteman Press of Canada Company Limited, 87 DTC 462, aff'd 88 DTC 6275 (F.C.A.), found that a letter filed by an agent of the appellant, containing the phrase "we formally wish to appeal", not to be an application for an extension of time. Counsel for the appellant had argued that the phrase was ambiguous and therefore should be interpreted in the appellant's favour.

[14] Section 305 of the ETA, like section 167 of the current ITA, restricts the discretion given to the Court more so than did old section 167 at the time of Minuteman (supra). Now the Court may only grant an application if all the requirements of section 305 are met. Subsection 305(2) states that such an application "shall set out the reasons why" the appeal was not filed on time. Subsection 305(3) states that the application "shall" be made by "filing" or "mailing" three copies of the application and three copies of the Notice of Appeal.

[15] The Appellant in the case before me mailed a letter to the Minister stating that he "would like to appeal...". The Appellant also filed with the Registrar a different letter in which he states that he "would like to proceed with the Informal Appeal Procedure to appeal...". There is no ambiguity in the Appellant's language, he simply did not intend to make an application under section 305 of the ETA and this Court cannot construe his Notice of Appeal as such.

Conclusion

[16] I could find no case law or statute that provides a legal basis from which to dismiss the Respondent's motion.

[17] The Respondent is correct in relying on Bowen (supra) as the authority for the proposition that once the Minister has discharged his duty under subsection 301(5) of the ETA, i.e. mailing of decision by registered or certified mail to the Appellant's last known address, the 90-day limitation period begins on the next day. The Court does not have the jurisdiction to adjust the starting date for the limitation period under any circumstances, nor does it have the jurisdiction to accept a late filed appeal without a successful application for an extension of time pursuant to section 305 of the ETA.

[18] For these reasons it is ordered that the Motion is granted and the appeal is dismissed.

Signed at Ottawa, Canada, this 28th day of July 1998.

"C.H. McArthur"

J.T.C.C.