Date: 19980806
Docket: APP-27-98-IT
BETWEEN:
YVES VAILLANCOURT,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
Lamarre Proulx, J.T.C.C.
[1] This is an application under section 166.2 of the
Income Tax Act (“the Act”) to extend
the time for serving a notice of objection on the Minister of
National Revenue (“the Minister”).
[2] The taxation years involved are 1993, 1994 and 1995. The
time limit for serving a notice of objection for 1993 was April
30, 1997. For the other two years, it was March 10, 1997.
[3] The appellant explained that he did not feel well
psychologically in 1996. He filed a letter from his attending
psychologist as Exhibit A-1.
[4] Robert Julien, the appellant’s accountant and his
agent at the hearing of this application, explained in his
testimony that he began looking after the appellant’s tax
affairs in early January 1997. He began negotiating with
Revenue Canada and Revenu Québec and said that he was
surprised when the applicant’s accounts were seized. That
was when he applied to the Minister for an extension of time
under subsection 166.1(1) of the Act. The application,
dated July 9, 1997, was filed as Exhibit I-1. It states only the
following: [TRANSLATION] “Application to extend the time
for appealing in respect of the 1993, 1994 and 1995 taxation
years because new facts have been obtained”. The
application was refused by the Minister in a letter dated October
17, 1997.
[5] When the accountant was asked by the Court what meetings
or telephone conversations he had had with Revenue Canada
concerning the application for an extension, he replied that
there had been none and that he had simply received
Revenue Canada’s response dated October 17, 1997,
refusing the application.
[6] However, this was contradicted by the testimony of Claude
Soulard, the Minister’s officer in this case. He referred
to several telephone calls asking Mr. Julien why he was
applying to the Minister for an extension of time.
Mr. Soulard said that he never received an answer and
finally decided against the application.
[7] Mr. Julien’s answer to that was that he had trouble
remembering the telephone calls and that, while he was not
denying them, he wondered why the Minister’s appeals
officer did not send him a letter instead.
[8] A letter makes it easier to prove the date and content of
communications, and it may be thought that the various exchanges
with Mr. Julien should have included one. However, the appeals
officer cannot be criticized for contacting the appellant’s
agent by telephone, since points that are unclear in a
taxpayer’s case and cannot all be covered by a form letter
can be explained in a telephone conversation.
Analysis and conclusion
[9] Mr. Julien began looking after the applicant’s file
in 1997 and admitted that he was aware of the time limits for
serving the notices of objection. It is therefore difficult to
understand why he did not serve the notices at the proper time.
Moreover, in seeking an extension of time, he did not say in his
written application why he was asking for an extension and did
not even respond to the many requests by the Minister’s
officer for that information. The intention under the Act
is that an application to extend the time for serving an
objection be discussed initially at the ministerial level.
[10] Subsection 166.2(5) of the Act reads as
follows:
When application to be granted — No application
shall be granted under this section unless
(a) the application was made under subsection 166.1(1)
within one year after the expiration of the time otherwise
limited by this Act for serving a notice of objection or making a
request, as the case may be; and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by this Act for serving
such a notice or making such a request, as the case may be, the
taxpayer
(A) was unable to act or to instruct another to act in the
taxpayer’s name, or
(B) had a bona fide intention to object to the
assessment or make the request,
(ii) given the reasons set out in the application and the
circumstances of the case, it would be just and equitable to
grant the application, and
(iii) the application was made under subsection 166.1(1)
as soon as circumstances permitted.
[11] It is my opinion that due diligence in the exercise of
the applicant's rights has not been shown in this case. The
application is accordingly dismissed.
Signed at Ottawa, Canada, this 6th day of August 1998.
“Louise Lamarre Proulx”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
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