[OFFICIAL ENGLISH TRANSLATION]
Date: 20020128
Docket: 2001-3151(GST)APP
BETWEEN:
ENRICO FERRARA
O/A CARROSSERIE FERRARA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Dussault, J.T.C.C.
[1] At issue is an application for an
extension of time to appeal from an assessment made under the
Excise Tax Act ("the Act") on December
10, 1999, for the period from January 1, 1992, to
December 31, 1998.
[2] The respondent's reply to the
applicant's application for an extension of time to appeal
sets out facts that should be recalled, given the
circumstances. Paragraphs 1 to 13 of the reply read as
follows:
[TRANSLATION]
1. On
December 10, 1999, the Minister issued and mailed to the
applicant a notice of reassessment covering the period from
January 1, 1992, to December 31, 1998.
2. The
applicant did not file with the Minister a notice of objection to
the notice of reassessment referred to in the previous paragraph
within the time limit prescribed in section 301 of the
Excise Tax Act (R.S.C. 1985, c. E-15), as
amended (hereinafter "the E.T.A."), which time
limit expired on March 9, 2000.
3.
Specifically, the applicant, through accountant Micheline Coutu,
his agent, filed with the Minister a notice of objection to the
notice of reassessment referred to in paragraph 1 of this reply
only on March 24, 2000, that is, the 105th day after the day
on which the notice of reassessment was mailed;
4. On May 30,
2000, the applicant applied to the Minister for an extension of
time to file a notice of objection under section 303 of the
E.T.A.
5. On October
13, 2000, in accordance with subsection 303(5) of the
E.T.A., the Minister of National Revenue notified the
applicant of his decision to grant the application for an
extension of time so that the applicant could file a notice of
objection to the notice of reassessment referred to in paragraph
1 of this reply.
6. In
accordance with subsection 303(6) of the E.T.A., October
13, 2000, is the new date on which the applicant's notice of
objection is considered to be filed.
7. On March
28, 2001, after considering the notice of reassessment and in
response to the notice of objection, the Minister mailed to the
applicant a notice informing him that he was confirming the
reassessment in accordance with subsection 301(5) of the
E.T.A.
8. The
Minister's March 28, 2001, decision also informed the
applicant that, if he wished to appeal to the courts from that
decision and from the decision confirming the notice of
reassessment made under the Act respecting the Québec
sales tax, he could refer to the leaflets attached to the
decision: "Information on Judicial Recourse" and
"How to Appeal to the Tax Court of Canada-GST & Income
Tax".
9. On March
28, 2001, the Minister also mailed to accountant Micheline Coutu,
the agent for the applicant, copies of the decisions concerning
the notice of reassessment referred to in paragraph 1 of
this reply and the notice of reassessment made under the Act
respecting the Québec sales tax.
10. The applicant did not
appeal from that decision to this Court through accountant
Micheline Coutu, his agent, within the time limit prescribed in
section 306 of the E.T.A., which time limit expired on
June 26, 2001.
11. The applicant did not
appeal from the decision concerning the notice of
reassessment made under the Act respecting the Québec
sales tax to the Court of Québec (Civil Division)
through accountant Micheline Coutu, his agent, within the time
limit prescribed in section 93.1.13., which time limit also
expired on June 26, 2001.
12. Specifically, through
accountant Micheline Coutu, his agent, the applicant filed with
the Minister a notice of appeal from the decision concerning the
notice of reassessment referred to in paragraph 1 of this
reply and from the decision concerning the notice of reassessment
made under the Act respecting the Québec sales tax
only on July 3, 2001, that is, the 97th day after the day on
which the notice of confirmation of reassessments was mailed.
13. On July 31, 2001, the
applicant applied to this Court for an extension of time to
appeal.
These facts are not contested.
In fact, the notice of appeal written by Micheline Coutu and
dated June 27, 2001, reads as follows:
[TRANSLATION]
Subject:
Appeal from decision No. 156085 and 156086
To whom it may concern:
I wish to appeal from the decision of which a copy is attached
hereto.
[3] The decision of which a copy is
attached to that notice of appeal is in fact a notice of
confirmation of reassessment, not a notice of reassessment.
[4] A letter from the applicant dated
July 27, 2001, and received by the Court on July 31, 2001,
states:
[TRANSLATION]
Please note that, further to your letter of June 29, 2001, we
wish to apply for an extension of time because we mailed our
application on June 27, 2001, believing that we had until June
30, 2001. I believed I had 90 days after the day the
reassessment was received.
[5] Only Micheline Coutu, who
presented herself as an accountant and the agent for the
applicant, testified. She acknowledged that she had been
late, not only with respect to the notice of appeal, but also
with respect to the notice of objection. From her
explanations, I understand that she was unaware of the time
limits to object and to appeal, or at least that she was not
aware of the rules for computing the time limits. She also
stated that she had been ill for one week.
[6] Counsel for the respondent argued
that the application should be dismissed on the ground that none
of the requirements set out in paragraph 305(5)(b) of
the Act have been met. Specifically, she argued that
neither the notice of appeal nor the application for an extension
of time make it possible to determine whether there are
reasonable grounds for the appeal. She referred to the
decision in Henry v. the Queen, 98 GTC 2198, in which the
Court stated that it could only grant an application if all the
requirements of section 305 were met. Counsel for the
respondent also relied on the Federal Court of Canada-Trial
Division-decision in M.N.R. v. Desgagné,
2001 DTC 5469, in arguing that the application should
be dismissed.
[7] Subsection 305(5) of the
Act reads as follows:
305.(5) When order to be made
No order shall be made under this section unless
(a) the application is made within one year after the
expiration of the time otherwise limited by this Part for
appealing; and
(b) the person demonstrates that
(i) within the time otherwise limited by this Part for
appealing,
(A) the person was unable to act or to give a mandate to act
in the person's name, or
(B) the person had a bona fide intention to appeal,
(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,
(iii) the application was made as soon as circumstances
permitted it to be made, and
(iv) there are reasonable grounds for appealing from the
assessment.
[8] A reading of this subsection makes
it clear that all the requirements must be met. The
requirement set out in paragraph 305(5)(a) has evidently
been met, as has the one in 305(b)(i), since the notice of
appeal is dated June 27, 2001. As for the requirement set
out in subparagraph 305(5)(b)(iii), it does not present
any difficulty in this case. With respect to the
requirement set out in subparagraph 305(5)(b)(ii), the
explanation given was an error in computing the time limit to
appeal. If I were satisfied that the delay was not the
result of any negligence by the agent for the applicant, I would
conclude that it is just and equitable to grant the
application. However, there is no evidence that allows me
to state that there are reasonable grounds for the appeal, and
thus it is clear that the requirement in subparagraph
305(5)(b)(iv) has not been met. First of all, the
notice of appeal refers only to the attached notice of
confirmation, not to the reassessment itself. More
importantly, however, is the fact that in this brief notice,
there is not only no summary of the reasons for and relevant
facts of the appeal but also no other elements whatsoever.
[9] When persons present themselves as
accountants and claim to represent taxpayers before the Tax Court
of Canada, something that is allowed under the statutory
provisions governing the informal procedure,[1] they must agree to fulfill the
obligations of that mandate with a minimum of professionalism and
competence; otherwise they are liable to action by taxpayers who
may be deprived of their rights.
[10] In this case, I consider that the
notice of appeal does not meet the minimum standards that would
make it possible to state that there are reasonable grounds for
the appeal. The application for an extension of time does
not remedy this situation.
[11] The application for an extension of
time to appeal is accordingly dismissed.
Signed at Ottawa, Canada, this 28th day of January 2002.
J.T.C.C.
Translation certified true
on this 6th day of May 2003.
Sophie Debbané, Revisor
Email this Content