Citation: 2012TCC266
Date: 20120724
Docket: 2012-1023(IT)APP
BETWEEN:
KWAME YANKEY,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The Applicant, on March
7, 2012, made an application pursuant to the provisions of section 166.2
of the Income Tax Act (the “Act”) to extend the time to serve
notices of objection to the reassessments of the Applicant’s 2003, 2004, 2005
and 2006 taxation years. The Applicant was reassessed for these taxation years
on June 30, 2009.
[2]
The Applicant purported
to serve a notice of objection to the reassessments of these taxation years on March
15, 2011. The Minister treated this objection as an application to extend the
time to serve a notice of objection but since the application was not made the
time within which such an application could have been made, it was not granted.
A letter informing the Applicant of this decision was sent on April 5, 2011.
[3]
The Applicant again
purported to serve a notice of objection to the reassessments of these taxation
years on April 13, 2011. The Minister treated this objection as an application
to extend the time to serve a notice of objection but since the application was
not made the time within which such an application could have been made, it was
not granted. A letter informing the Applicant of this decision was sent on July
5, 2011.
[4]
The Applicant again
purported to serve a notice of objection to the reassessments of these taxation
years on August 2, 2011. The Minister treated this objection as an application
to extend the time to serve a notice of objection but since the application was
not made the time within which such an application could have been made, it was
not granted. A letter informing the Applicant of this decision was sent on
November 23, 2011.
[5]
The Applicant again
purported to serve a notice of objection to the reassessments of these taxation
years on February 10, 2012. The Minister treated this objection as an
application to extend the time to serve a notice of objection but since the
application was not made the time within which such an application could have
been made, it was not granted. A letter informing the Applicant of this
decision was sent on February 23, 2012.
[6]
The Applicant then
made this application pursuant to section 166.2 of the Act.
[7]
Subsection 166.2(1) of
the Act provides as follows:
166.2
(1) 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.
[8]
Since the application
to this Court was made on March 7, 2012, it cannot be considered to be an
application in relation to the first, second or third decisions of the Minister
as the notifications of these decisions were sent on April 5, 2011, July 5,
2011 and November 23, 2011. The application to this Court filed on March 7,
2012 was made more than 90 days after the day on which these notifications were
mailed to the Applicant.
[9]
The application to this
Court filed on March 7, 2012 was made within 90 days of the day that the
notification of the Minister’s decision was mailed to the Applicant in response
to the last application made by the Applicant to the Minister.
[10]
The last application to
the Minister was made on February 10, 2012. Subsection 166.2(5) of the Act
provides that:
(5)
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]
The application under
subsection 166.1(1) of the Act is the application made to the Minister
to request an extension of time to serve the notice of objection which was last
made by the Applicant in this case on February 10, 2012. As a result of the
provisions of paragraph 166.2(5)(a) of the Act, the application to this
Court to extend the time to serve a notice of objection cannot be granted
unless the application to the Minister to extend the time for serving the
notice of objection was made within one year following the expiration of the
time within which a notice of objection could have been served without an
extension of time. The time within which a notice of objection may be served
(without an extension of time being granted) is set out in subsection 165(1) of
the Act. Prior to December 15, 2010 this subsection provided as follows:
165.
(1) 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 …, 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 mailing of the notice of assessment;
and
(b)
in any other case, on or before the day that is 90 days after the day of mailing
of the notice of assessment.
[12]
The date that the
notices of reassessment were mailed to the Applicant started the period within
which a notice of objection may be served. Therefore the application to the
Minister to extend the time to serve a notice of objection must be made within
one year and ninety days from the date that the notices of reassessment were
mailed to the Applicant. The Respondent filed an affidavit of an officer of the
Toronto Litigation Office of the Canada Revenue Agency outlining the practice
and procedure for mailing notices of reassessment. Based on this affidavit I
conclude that it is more likely than not that the notices of reassessment were
mailed to the Applicant on June 30, 2009. The last application to the Minister
to extend the time to serve a notice of objection was made over two and half
years after the notices of reassessment were mailed to the Applicant.
[13]
The Applicant stated
that he had not received the notices of reassessment in 2009, however he did
confirm that his address is the same address as in the Canada Revenue Agency
files (and that this was his address in 2009). His explanation was that he had
left the country for a period of approximately six weeks in 2009. However he
left during March and April of 2009, which was before the notices of
reassessment would have been sent to the Applicant. Subsection 165(1) of the Act
is clear that the date that the notices of reassessments were mailed in 2009
started the period during which the Applicant could have served a notice of
objection and also the period within which he could have made an application
for an extension of time.
[14]
Unfortunately there is
no discretion to extend the deadlines as set out in the Act and the provisions
of subsection 166.2(5) of the Act are clear that no application may be
granted by this Court unless both the requirements of paragraph (a) and
(b) are satisfied. In this case the Applicant has failed to satisfy the
requirements of paragraph 166.2(5)(a) of the Act.
[15]
As a result the
Applicant’s Application to extend the time for serving notices of objection in
relation to the reassessments of the Applicant’s 2003, 2004, 2005 and 2006
taxation years is dismissed, without costs.
Signed at Ottawa, Cana da, this 24th day of July, 2012.
“Wyman W. Webb”
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