Olivera v. The Queen, docket APP-355-97-IT

Date: 19980130

Docket: APP-355-97-IT

BETWEEN:

JOSEPH OLIVIERA,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

G. Tremblay, J.T.C.C.

[1]The facts as proved before this Court are as follows:

On January 31, 1997, the applicant was assessed in respect of additional income for the 1994 and 1995 taxation years. The assessor initially asked the applicant for information by sending him a letter dated October 10, 1995, requesting a meeting with him and permission to examine his books and records.

[2]Since no reply was received, another letter to the same effect was sent to the applicant on April 4, 1996. That letter was not answered, and a third letter was therefore sent to him on June 26, 1996, to obtain information about his business, Marché aux Puces St-Zotique. No reply was received.

[3]Finally, a fourth letter was sent to him on November 8, 1996, informing him of the increase in his income:

Marché aux Puces St-Zotique

1994 1995

$30,000 $30,000

The four letters were filed as Exhibit I-1. The applicant admitted receiving them.

[4]The assessments (Exhibit I-2) were made on January 31, 1997.

[5]The applicant remembered receiving the notices of assessment. He put them aside and forgot about them. The 90-day time limit set out in subparagraph 165(1)(a)(ii) of the Income Tax Act (hereinafter “the Act”) ended on May 1, 1997.

[6]During that entire period, the applicant did not show any intention to object. It was not until May 20, 1997, that he filed a notice of objection to the assessments with the respondent. Because the notice of objection was filed late, the respondent refused to accept it.

[7]On September 11, 1997, the applicant filed an application with the Tax Court of Canada to extend the time for filing a notice of objection.

[8]According to subparagraph 166.2(5)(b)(i) of the Act, one of the prerequisites for granting an application to extend time is the following:

166.2(5) When application to be granted.

. . .

(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,

[9]Nothing in the evidence showed that such a situation or intention existed.

Conclusion

[10]For the above reasons, the application is dismissed.

“Guy Tremblay”

J.T.C.C.

Québec, Canada,

this 30th day of January 1998.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 7th day of May 1998.

Mario Lagacé, Revisor