Docket: 2011-1245(IT)I
BETWEEN:
ELI WINTERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Motion
heard on August 24, 2011 at Vancouver, British Columbia
Before: The Honourable Justice
Wyman W. Webb
Appearances:
|
Agent for the Appellant:
|
Robert
Stone
|
|
Counsel for the Respondent:
|
Amandeep K. Sandhu
|
____________________________________________________________________
ORDER
The Respondent's motion to quash the
Appellant's appeals in relation to the reassessment of his tax liability for
2000, 2001, 2002, 2003, and 2004 is allowed and the Appellant's appeals are
quashed, without costs.
Signed at Winnipeg, Manitoba, this 7th day of September
2011.
“Wyman W. Webb”
Citation: 2011TCC417
Date: 20110907
Docket: 2011-1245(IT)I
BETWEEN:
ELI WINTERS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Webb, J.
[1]
The Appellant filed an
appeal to this Court in which he indicated that he was appealing the reassessment
(or assessment) of his tax liability for the years 2000 to 2004 inclusive. At
the commencement of the hearing the agent for the Appellant confirmed that only
the years 2001 and 2002 were being pursued by the Appellant. The Respondent
brought a motion to quash the Appellant’s appeals in relation to the years 2000
to 2004. Since the Appellant was only pursuing the appeals for 2001 and 2002, the
appeals in relation to reassessments for the years 2000, 2003 and 2004 are
quashed. As a result the motion to quash the appeals in relation to the years
2001 and 2002 will be addressed. The Respondent had brought the motion to quash
the Appellant’s appeals in relation to 2001 and 2002 on the basis that a valid notice
of objection had not been filed in relation to the reassessments issued for either
one of these years.
[2]
The Appellant’s tax
liability for 2001 was reassessed on March 14, 2005. The Appellant was
reassessed for 2002 on May 17, 2010. The Appellant did not file a notice of
objection to either one of these reassessments until December 24, 2010. In that
notice of objection the Appellant objected to the reassessment of his 2002 and
2003 taxation years. On January 26, 2011 the Appellant served a notice of objection
to the reassessment of his 2001, 2002 and 2003 taxation years.
[3]
By letter dated
February 24, 2011 the Minister notified the Appellant that his notice of
objection in relation to the reassessment issued for 2001 was served after the
expiration of the period of time within which a notice of objection in relation
to this reassessment could have been served and after the expiration of the
time period within which the Appellant could have requested an extension of
time to serve a notice of objection in relation to this reassessment. The
minister also noted that, although the notice of objection in relation to the
reassessment issued for 2002 was also served after the expiration of the period
of time within which a notice of objection in relation to this reassessment
could have been served, the Appellant still had time to request an extension of
time to serve the notice of objection in relation to the reassessment for 2002.
The Appellant did not request an extension of time to serve a notice of
objection in relation to the reassessment for 2002 but instead filed an appeal
to this Court on April 22, 2011.
[4]
Subsection 169(1) of the Income
Tax Act provides as follows:
169. (1) Where a taxpayer has served notice of objection to an assessment
under section 165, the taxpayer may appeal to the Tax Court of Canada to
have the assessment vacated or varied after either
(a) the Minister has confirmed the assessment or reassessed, or
(b) 90 days have elapsed after service of the notice of objection
and the Minister has not notified the taxpayer that the Minister has vacated or
confirmed the assessment or reassessed,
but no appeal under this section may be instituted after the expiration
of 90 days from the day notice has been mailed to the taxpayer under section
165 that the Minister has confirmed the assessment or reassessed.
[5]
In Bormann v. The Queen,
2006 DTC 6147, the Federal Court of Appeal stated as follows:
3 Section 169(1) of the Income Tax Act obliges a taxpayer
to serve 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.
Minuteman Press of Canada Company Limited v. M.N.R., 88 DTC
6278, (F.C.A.).
6 As a result, there is no basis upon which it can be said that
the Tax Court Judge erred in quashing the appellant's appeals for the 1992 to
1998 taxation years.
[6]
In order to appeal to
this Court, the Appellant must first serve a valid notice of objection. The
notice of objection filed for 2001 was clearly filed well after the expiration
of the time within which a notice of objection may be served under the Act.
Section 165 of the Act provides 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 (other than a trust) or a
testamentary trust, 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.
[7]
If a notice of
objection is not filed within the time as provided in subsection 165(1) of
the Act, a taxpayer may request an extension of time to serve the notice
of objection as provided in section 166.1 of the Act. However, paragraph 166.1(7)(a)
of the Act provides as follows:
(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;
[8]
The notice of objection
in relation to the reassessment of the Appellant’s 2001 taxation year was
served more than 5 years after the date of the reassessment which is long after
the expiration of the period of time within which a notice of objection to this
reassessment could have been served and long after the expiration of the period
of time within which the Appellant could have requested an extension of time to
serve this notice of objection. Therefore this notice of objection was not
valid and the appeal to this Court related to this reassessment is quashed.
[9]
The notice of objection
in relation to the reassessment of his 2002 taxation year was served more than
90 days after the date of this reassessment but the time within which the
Appellant could have requested an extension of time to serve a notice of
objection had not expired when he filed this notice of objection. The Appellant
was notified of this but did not make the application to the Minister to
request an extension of time to serve the notice of objection as provided in
section 166.1 of the Act. As a result the Appellant does not have a
valid notice of objection to the reassessment issued for 2002 and his appeal to
this Court in relation to this reassessment is quashed.
[10]
As a result, the
Respondent's motion to quash the Appellant's appeals in relation to the
reassessment of his tax liability for 2000, 2001, 2002, 2003, and 2004 is allowed
and the Appellant's appeals are quashed, without costs.
Signed at Winnipeg, Manitoba, this 7th day of September 2011.
“Wyman W. Webb”
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