Docket: 2010-3969(IT)APP
BETWEEN:
ROBERT ROLAND,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application
heard on April 1, 2011 at Toronto, Ontario
Before: The Honourable
Justice L.M. Little
Appearances:
|
Counsel for the Applicant:
|
Michael
Morgan
|
|
Counsel for the Respondent:
|
Sina Akbari
Samantha Hurst
|
____________________________________________________________________
ORDER
The application for an extension
of time to file a Notice of Appeal for the 2003 and 2004 taxation years is
dismissed, without costs, in accordance with the attached Reasons for Order.
Signed at Vancouver, British Columbia, this 6th day
of April 2011.
“L.M. Little”
Citation: 2011 TCC 202
Date: April 6, 2011
Docket: 2010-3969(IT)APP
BETWEEN:
ROBERT ROLAND,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Little J.
[1]
The Minister of
National Revenue (the “Minister”) reassessed the Applicant for the 2003 and
2004 taxation years by Notices of Reassessment dated March 29, 2007.
[2]
The Applicant purported
to object to the said Reassessments by Notices of Objection dated
October 1, 2007 and received by the Canada Revenue Agency (the “CRA”)
on October 18, 2007.
[3]
By letter dated
November 8, 2007, the Minister notified the Applicant that the
Notices of Objection for the 2003 and 2004 taxation years were received beyond
the 90 day limitation period and, therefore, the Notices would not be
accepted under the Income Tax Act (the “Act”).
[4]
However, in the letter
to the Applicant dated November 8, 2007, the Minister stated that the
Applicant could apply for an extension of time within which to file Notices of
Objection for the 2003 and 2004 taxation years.
[5]
On
September 11, 2008, the Minister received a request from the
Applicant to extend the time within which Notices of Objection for the 2003 and
2004 taxation years might be filed.
[6]
By letter dated October 3, 2008,
the Minister notified the Applicant that the request to extend the time to file
Notices of Objection for the 2003 and 2004 taxation years would not be
granted because the Applicant did not meet the one year plus 90 day deadline
contained in the Act.
[7]
The Minister concluded
that the deadline for filing an Application to extend the time within which to
file Notices of Objection for the 2003 and 2004 taxation years was one year
plus 90 days from March 29, 2007, i.e., on or before June 27, 2008.
In this situation, the Application to extend the time for Notices of Objection
was filed on September 11, 2008, i.e., some two and one‑half
months late.
[8]
An Application to
extend the time within which to file a Notice of Appeal with the Tax Court for
the 2003 and 2004 taxation years was filed with the Tax Court on
December 23, 2010.
ISSUE
[9]
Should the Application to
extend the time to file a Notice of Appeal be granted?
ANALYSIS
[10]
Paragraph 166.1(7)(a)
of the Act specifies that an Application to extend the time within which
to file a Notice of Objection is one year plus 90 days after the date that the
Reassessments were issued.
[11]
In this situation, the
Applicant clearly missed the one year plus 90 day extension period for filing
Notices of Objection.
[12]
The Act
specifies that the filing of a Notice of Objection is a condition precedent
to instituting an appeal to the Tax Court. I refer to the decision of the
Federal Court of Appeal in Bormann v The Queen, 2006 FCA 83, 2006 D.T.C.
6147. In that case, Sexton J. said, at paragraphs 3 to 5:
[3] Section 169(1) of
the Income Tax Act obliges a taxpayer to serve [a] Notice of Objection in order to appeal an assessment. In
other words, service of a Notice is a condition precedent to the institution of
an appeal.
[4] As mentioned, the
appellant did not serve a Notice of Objection nor is there evidence that the
appellant made an application to the Ministry to extend the time to file a
Notice of Objection.
[5] Once it is clear
that no application for an extension of time was made, the law is clear that
there is no jurisdiction in the Tax Court to further extend the time for
equitable reasons.
[13]
I do not have the
authority to extend the time within which to file Notices of Objection.
[14]
I must, therefore,
dismiss the Application to extend the time to file a Notice of Appeal.
[15]
The Application is dismissed,
without costs.
Signed at Vancouver, British Columbia, this 6th day of April 2011.
“L.M. Little”
CITATION: 2011 TCC 202
COURT FILE NO.: 2010-3969(IT)APP
STYLE OF CAUSE: ROBERT ROLAND AND
HER
MAJESTY THE QUEEN
PLACE OF HEARING: Toronto,
Ontario
DATE OF HEARING: April 1, 2011
REASONS FOR ORDER
BY: The Honourable Justice L.M. Little
DATE OF ORDER: April 6, 2011
APPEARANCES:
|
Counsel for the
Applicant:
|
Michael Morgan
|
|
Counsel for the
Respondent:
|
Sina Akbari
Samantha Hurst
|
COUNSEL OF RECORD:
For the Applicant:
Name: Michael Morgan
Firm: Harris
& Harris LLP
For the
Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
Email this Content