Docket: 2010-3817(IT)APP
BETWEEN:
MARCEL M. VATASESCU,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on March 2, 2011 at Toronto, Ontario
By: The Honourable Justice Judith Woods
Appearances:
|
For the Applicant:
|
The Applicant himself
|
|
Counsel for the Respondent:
|
Jasmeet Kala (student-at-law)
Sharon Lee
|
____________________________________________________________________
JUDGMENT
The application for an order extending the time within
which to serve a notice of objection in respect of an assessment made under the
Income Tax Act for the 2007 taxation year is dismissed. Each party shall
bear their own costs.
Signed at Ottawa, Canada this 8th day of March 2011.
“J. M. Woods”
Citation: 2011 TCC 149
Date: 20110308
Docket: 2010-3817(IT)APP
BETWEEN:
MARCEL M. VATASESCU,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1]
This is an application by Marcel
Vatasescu for an extension of time to serve a notice of objection. The
applicant wishes to dispute an assessment made under the Income Tax Act for
the 2007 taxation year which disallowed a deduction of moving expenses.
[2]
The respondent objects to the granting
of the order on the ground that the applicant did not first apply for an
extension of time to the Minister.
[3]
Excerpts of the relevant provisions, s. 166.2(1) and (5) of the Act,
are reproduced below:
166.2(1)
A taxpayer who has made an application under subsection 166.1 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.
166.2(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
[…]
[4]
In light of these provisions, the order requested by the applicant
cannot be granted unless he has previously made an application to the Minister
for an extension of time under section 166.1 and that application was made in a
timely manner.
[5]
Excerpts from
section 166.1 are reproduced below:
166.1(1)
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.
166.1(3)
An application under subsection (1) shall be made by being addressed to the
Chief of Appeals in a District Office or a Taxation Centre of the Canada
Revenue Agency and delivered or mailed to that Office or Centre, accompanied by
a copy of the notice of objection or a copy of the request, as the case may be.
166.1(4)
The Minister may accept an application under this section that was not made in
the manner required by subsection (3).
[6]
The requirements under sections
166.1 and 166.2 are strict and cannot be ignored by the Court on grounds of
fairness: Bormann v The Queen, 2006 FCA 83; 2006 DTC 6147.
[7]
Unfortunately for the applicant, an
application was not made to the Minister within the time required, which is within
one year and 90 days from the date of the assessment. In this case, the
reassessment was made on March 5, 2009, and the deadline for an application to
the Minister was June 3, 2010.
[8]
The applicant did not write to the
Canada Revenue Agency (CRA) until June 10, 2010, which was a few days after the
deadline. The letter was addressed to the Tax Review Centre and it was followed
up by an objection letter addressed to the Chief of Appeals dated July 14,
2010.
[9]
It appears that the CRA reviewed
the objection even though it was out of time. Unfortunately for the applicant,
the outcome of this review was not in his favour.
[10]
It is very unfortunate that the
deadline was missed by a short period. The applicant was out of the country
when the reassessment was issued and he followed up with the CRA as best he
could from abroad. Despite the applicant having several phone calls with the
CRA about supporting documentation, no one apprised him that he was out of time
to object and that he needed to apply for an extension of time.
[11]
The circumstances are sympathetic
but I do not see a way that relief can be provided by this Court.
[12]
With regret, I must dismiss the
application.
Signed at Ottawa,
Canada this 8th day of March 2011.
“J. M. Woods”
CITATION: 2011 TCC 149
COURT FILE NO.: 2010-3817(IT)APP
STYLE OF CAUSE: MARCEL M. VATASESCU and HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: March 2, 2011
REASONS FOR JUDGMENT BY: The
Honourable Justice J. M. Woods
DATE OF JUDGMENT: March 8, 2011
APPEARANCES:
|
For the
Applicant:
|
The Applicant himself
|
|
Counsel for the
Respondent:
|
Jasmeet Kala (student-at-law)
Sharon Lee
|
COUNSEL OF RECORD:
For the Applicant:
Name: N/A
Firm:
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa, Canada
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