Docket: 2012-1925(IT)APP
BETWEEN:
Sava vidanovic,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on July 11, 2012 at Montreal, Quebec.
Before: The Honourable
Justice Lucie Lamarre
Appearances:
|
For the Applicant:
|
The
Applicant himself
|
|
Counsel for the Respondent:
|
Valerie Messore
|
____________________________________________________________________
ORDER
Upon application for an order extending the
time within which notices of objection under the Income Tax Act for the
1988, 1989, 1990, 1991, 1992, 1993, 1994 and 1995 taxation years may be served;
And upon hearing what was alleged by the
parties;
The application for the 1988, 1989, 1990,
1991, 1992, 1993, 1994 and 1995 taxation years is dismissed.
Signed at Ottawa, Canada, this 23th day of July 2012.
“Lucie Lamarre”
Citation: 2012 TCC 265
Date: 20120723
Docket: 2012-1925(IT)APP
BETWEEN:
Sava vidanovic,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Lamarre J.
[1]
I have heard what was characterized
by the Registry of this Court as an application for an extension of time to
file notices of objection for the years 1988 through 1995. The application
before me was filed with the Court on May 16, 2012.
[2]
It appears from the
testimony of Ms. Francine Perreault, a litigation officer with the Canada
Revenue Agency (CRA), and from a printout of income and deductions
(Option C) for all the years at issue (Exhibit R‑1) that the applicant
was assessed and reassessed as follows:
|
Years
|
Initial Assessment
|
First Reassessment
|
Second Reassessment
|
Third Reassessment
|
|
|
|
|
|
|
|
1988
|
May 31, 1889
|
May 29, 1992
|
August 25, 1993
|
|
|
1989
|
May 29, 1992
|
August 25, 1993
|
|
|
|
1990
|
May 29, 1992
|
August 25, 1993
|
|
|
|
1991
|
July 15, 1992
|
|
|
|
|
1992
|
Not filed
|
|
|
|
|
1993
|
June 20, 1994
|
October 10, 1995
|
September 16, 1996
|
October 15, 1996
|
|
1994
|
June 19, 1995
|
September 16, 1996
|
|
|
|
1995
|
June 3, 1996
|
September 16, 1996
|
|
|
[3]
It is obvious from that
printout that by virtue of subsections 165(1), 166.1(1) and 166.2 (1) and
subparagraphs 166.1(7)(a) and 166.2(5)(a) of the Income Tax
Act (ITA), the applicant is now precluded from objecting to any of
the latest reassessments issued with respect to the taxation years at issue. Those
provisions read as follows:
165.
(1) Objections to assessment. A taxpayer who
objects to an assessment under this Part may serve on the Minister a notice of
objection, in writing, setting out the reasons for the objection and all
relevant facts,
(a) where the assessment is in respect of the taxpayer for a
taxation year and the taxpayer is an individual (other than a trust) or a
testamentary trust, on or before the later of
(i) the day that is one year after the taxpayer’s filing-due date
for the year, and
(ii) the day that is 90 days after the day of sending of the notice
of assessment; and
(b) in any other case, on or before the day that is 90 days
after the day of sending of the notice of assessment.
. . .
166.1
(1) Extension of time by Minister. Where no notice
of objection to an assessment has been served under section 165, nor any
request under subsection 245(6) made, within the time limited by those
provisions for doing so, the taxpayer may apply to the Minister to extend the
time for serving the notice of objection or making the request.
. . .
(7)
When order to be made. No application shall be
granted under this section unless
(a) the application is made 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
. . .
166.2
(1) Extension of time by Tax Court. A taxpayer who
has made an application under subsection 166.1 [(1)] may apply to the Tax Court
of Canada to have the application granted after either
(a) the Minister has refused the application, or
(b) 90 days have elapsed after service of the application
under subsection 166.1(1) and the Minister has not notified the taxpayer of the
Minister’s decision,
but
no application under this section may be made after the expiration of 90 days
after the day on which notification of the decision was mailed to the taxpayer.
. . .
(5)
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….
[4]
Ms. Perreault
testified that she did not find in the system any application for an extension
of time to object to the most recent assessments for the years 1991 through
1995. She also said that normally correspondence is kept in the system for six
years, but if there is an outstanding appeal, the file will remain in the
system until the appeal process is over.
[5]
On August 18, 2010, the
applicant requested a reassessment for the 1970 to 1999 taxation years, asking
for a revision of his tax returns with respect to his pension contributions, the
retroactive payment of pension benefits, and what he called on overcharge of government
taxes (Exhibit R-2).
[6]
By letter dated
December 15, 2010, the CRA replied to the applicant, telling him that the
Minister of National Revenue (Minister) no longer had the discretion to
reassess his income tax returns in order to give a refund, or to apply a refund
against amounts owing, beyond the normal three-year period, since an application
by the taxpayer for such relief had to be made not more than ten years after
the end of the taxation year for which the request was made (Exhibit R-3). This
answer was based on subsection 152(4.2) of the ITA, which read as follows,
effective January 1, 2005:
152(4.2)
Reassessment with taxpayer’s consent.
Notwithstanding subsections (4), (4.1) and (5), for the purpose of determining,
at any time after the end of the normal reassessment period of a taxpayer who
is an individual (other than a trust) or a testamentary trust in respect of a
taxation year, the amount of any refund to which the taxpayer is entitled at
that time for the year, or a reduction of an amount payable under this Part by
the taxpayer for the year, the Minister may, if the taxpayer makes an
application for that determination on or before the day that is ten calendar
years after the end of that taxation year,
(a) reassess tax, interest or penalties payable under this
Part by the taxpayer in respect of that year; and
(b) redetermine the amount, if any, deemed by subsection
120(2) or (2.2), 122.5(3), 122.51(2), 122.7(2) or (3), 127.1(1), 127.41(3) or
210.2(3) or (4) to be paid on account of the taxpayer’s tax payable under this
Part for the year or deemed by subsection 122.61(1) to be an overpayment on
account of the taxpayer’s liability under this Part for the year.
[7]
Here, the request dated
August 18, 2010 for the years 1970 to 1999 was made out of time.
[8]
Ms. Perreault also
testified that the applicant filed an application for an extension of time to
file a notice of objection for the years 1988, 1989 and 1990, on or about
October 19, 2011 (this application most probably consists of two letters filed
by the applicant as Exhibit A‑4, one sent to the Montérégie-Rive-Sud Tax Services
Office, and the other to the Complexe Cousineau, Saint-Hubert. Both letters are
dated October 16, 2011). On January 16, 2012, the CRA informed the
applicant that the application was made more than one year after the expiration
of the time limited by paragraph 165(1)(a) of the ITA and could
not be granted by reason of subsection 166.1(7) of the ITA (Exhibit R-4).
[9]
The applicant filed various
documents. He intended to show that he did file a notice of objection well
before October 19, 2011. Exhibit A-1 is a letter dated April 16, 1993 sent
to him by what was then Revenue Canada and stating that his application for an
extension of time to file an objection for the years 1988, 1989 and 1990 was
granted.
[10]
However, it appears
from Exhibit R-1 that the applicant was reassessed for those three years on
August 25, 1993, after the notice of objection was accepted. The applicant subsequently
made no further objection.
[11]
The applicant filed
other letters, dated November 17, 1995 (Exhibit A-8) and April 26, 1996
(Exhibit A-2). He stated that these were notices of objection. It would seem
that, whether or not these letters were actually sent to the CRA, the applicant
was reassessed for 1993, 1994 and 1995 after the dates on which the letters
were purportedly sent, and as for the years prior to 1993, the letters were out
of time in any case.
[12]
The applicant appeared
alone in Court, without his accountant, who had apparently dealt with the CRA
for all the years for which he is claiming a refund. There is no evidence that
notices of objection or applications for an extension of time were filed by the
accountant in a timely manner.
[13]
None of the
documentation provided by the applicant evidences any notice of objection or
request for an extension of time to file a notice of objection to the most
recent assessment issued for each year.
[14]
The CRA was right in
declining to reopen all the years at issue as it did no longer had jurisdiction
to do so in light of subsection 152(4.2) of the ITA, and it is now too late to
file a notice of objection for any of those years.
[15]
The application brought
before me is dismissed.
Signed at Ottawa, Canada, this 23th day of July
2012.
“Lucie Lamarre”
Email this Content