Date: 19980609
Docket: APP-496-97-IT
BETWEEN:
DAVID ROTHSTEIN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
P.R. Dussault, J.T.C.C.
[1] This is an application made pursuant to the Income Tax
Act (the “Act”) for an order extending the
time within which the applicant may serve on the Minister of
National Revenue (the “Minister”) a notice of
objection in respect of an assessment dated April 14, 1997,
for the applicant’s 1993 taxation year.
[2] The applicant did not serve a notice of objection within
the time limited by paragraph 165(1)(a) of the
Act, i.e. within 90 days after the day of mailing of
the notice of assessment. Rather, the applicant did serve such a
notice on August 1, 1997, upon receipt of a collection
letter.
[3] On October 15, 1997, the applicant filed an application
for an extension of time within which to serve a notice of
objection to the said assessment and on October 24, 1997,
the Minister refused to grant such an extension.
[4] On December 23, 1997, the applicant filed the present
application with the court.
[5] The respondent submits that the applicant has not
demonstrated that, during the time otherwise limited by the
Act for serving a notice of objection, he was unable to
act or to instruct another to act in his name or that during that
time he had a bona fide intention to object the whole
within the meaning of subparagraph 166.2(5)(b)(i) of
the Act.
[6] The evidence presented by the respondent convinces me
that, on the balance of probabilities, the notice of assessment
was duly issued and mailed on April 14, 1997.
[7] The evidence presented by the applicant convinces me, in
like manner, that he did not receive the said notice of
assessment and therefore that he was, obviously, unable to act or
to instruct another person to act in his name within the time
otherwise limited by the Act for serving a notice of
objection within the meaning of
clause 166.2(5)(b)(i)(A) of the Act.
[8] As I also conclude that the conditions set forth in
paragraph 166.2(5)(a) and
subparagraphs 166.2(5)(b)(ii) and (iii) have been
satisfied, the application is granted and the notice of objection
served on the Minister on August 1, 1997, is deemed to be validly
served on the date of this order.
Signed at Ottawa, Canada, this 9th day of June 1998.
"P.R. Dussault"
J.T.C.C.
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