Citation: 2012TCC208
Date: 20120612
Docket: 2012-617(IT)APP
BETWEEN:
HAROLD RILEY,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb J.
[1]
The Applicant 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 assessments of the Applicant’s 2001, 2002 and 2003 taxation years.
[2]
The Applicant was
assessed for these taxation years on the following dates:
|
Taxation Year
|
Date of Assessment
|
|
2001
|
April 22, 2002
|
|
2002
|
April 10, 2003
|
|
2003
|
May 10, 2004
|
[3]
The Applicant purported
to serve a notice of objection to the assessments of these taxation years on
September 22, 2011. The Minister treated this objection as an application to
extend the time to serve a notice of objection but since the application was
made long after the time within which such an application could have been made,
it was not granted. The Applicant then made this application pursuant to
section 166.2 of the Act.
[4]
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.
[5]
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 made
by the Applicant in this case on September 22, 2011. 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.
[6]
The application to
extend the time to serve a notice of objection was not made within one year
after the time limited by the Act for serving a notice of objection to
any of the above assessments and was not made until several years after the
time within which a notice of objection could have been served as provided in
subsection 165(1) of the Act. The Applicant argued that the Minister had
not considered the other conditions as set out in the section governing
applications to the Minister to extend the time to serve notices of objection.
These other conditions are set out in subsection 166.1(7) of the Act:
166.1 (7) 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
(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 as soon as circumstances permitted.
[7]
The conditions as set
out in paragraph 166.1(7)(b) of the Act (in relation to
applications made to the Minister for extensions of time to serve notices of
objection) are the same conditions that are set out in paragraph 166.2(5)(b)
of the Act (in relation to applications made to this Court for
extensions of time to serve notices of objection). However, because whether the
application is to the Minister or this Court, the conditions in both paragraphs
(a) and (b) of either subsection 166.1(7) or 166.2(5) of the Act
must be satisfied, if the condition as set out in paragraph (a) of the
applicable subsection is not satisfied, the application to extend the time to
serve a notice of objection cannot be granted regardless of whether the
conditions as set out in paragraph (b) are satisfied. Therefore once it
is determined that the condition as set out in paragraphs 166.1(7)(a)
and 166.2(5)(a) of the Act is not satisfied, it is not necessary
to consider whether the conditions as set in paragraphs 166.1(7)(b) and
166.2(5)(b) are satisfied.
[8]
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.
[9]
As a result the Applicant’s
Application to extend the time for serving notices of objection in relation to
the assessments of the Applicant’s 2001, 2002 and 2003 taxation year is
dismissed, without costs.
Signed at Halifax, Nova Scotia, this 12th day of June 2012.
“Wyman W. Webb”
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