Dockets: 2009-2870(GST)APP
2009-2871(GST)APP
BETWEEN:
MARLIN SHANOUDA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent;
AND BETWEEN:
NABIL SHANOUDA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Applications heard on November 3, 2009, at
Toronto, Ontario
Before: The Honourable
Justice Steven K. D'Arcy
Appearances:
|
For the Applicants:
|
Marlin
Shanouda
|
|
Counsel for the Respondent:
|
Thang Trieu
|
____________________________________________________________________
ORDER
Upon applications for an Order extending
the time within which Notices of Objection may be served with respect to an assessment
made under the Excise Tax Act (the “Act”) by the Minister of
National Revenue, notices of which are dated March 5, 2008, and bear numbers
08046510212370003 and 08046510212370002;
And whereas the applications were brought
beyond the time line provided for in subsection 304(5) of the Act;
And upon reading the materials filed, and hearing from the Applicants,
Marlin Shanouda and Nabil Shanouda, and counsel for the Respondent;
It is ordered that
the applications are dismissed.
There shall be no
order as to costs.
Signed at Ottawa, Canada,
this 17th day of November
2009.
“S. D’Arcy”
Citation: 2009 TCC 593
Date: 20091117
Dockets: 2009-2870(GST)APP
2009-2871(GST)APP
BETWEEN:
MARLIN SHANOUDA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent;
AND BETWEEN:
NABIL SHANOUDA,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
(Delivered orally from the bench on
November 3, 2009, in Toronto, Ontario.)
[1]
There are two
applications before the Court. One application has been brought by Nabil
Shanouda and another application has been brought by Marlin Shanouda.
[2]
Each application is for
an order extending the time within which the Applicant may serve on the
Minister of National Revenue a Notice of Objection in respect of the
reassessment of the Goods and Services Tax rebate.
[3]
The evidence before the
Court is as follows:
-
Each of the Applicants
filed a GST New Residential Property Rebate application on January 24, 2008.
-
The Minister denied
each of the Applicant’s rebate claims and issued a Notice of Assessment to each
Applicant on March 5, 2008.
-
The Notices of Assessment
were received by each of the Applicants.
-
Each of the Applicants
filed a Notice of Objection with the Minister on June 19, 2009.
-
On August 26, 2009, the
Minister determined that the Notices of Objection were not validly filed. In
addition, the Minister concluded that he could not grant applications for
extensions of time within which to file the Notices of Objection.
[12]
Each of the Applicants
testified at the hearing. It is clear from their testimony that the delay in
the filing of their Notices of Objection was caused solely by the actions of
their professional advisor.
[13]
The Applicants’
professional advisor was an accountant who had been acting for the family for
15 years.
[14]
The Applicants relied
upon the accountant to file the original rebate claims and to deal with the
notices of assessment.
[15]
With respect to the
notices of assessment, the accountant informed the Applicants that he was
pursuing the matter with the CRA’s fairness committee and that “it was only a
matter of time before the rebate applications would be approved”.
[16]
After a while, the Applicants
began to question the advice they were receiving from the accountant. They
requested the contact information for the CRA’s fairness committee. The
accountant refused to provide the information.
[17]
The Applicants then
tried to contact the CRA’s fairness committee directly. Although they contacted
their local CRA office, they were not able to obtain the contact information
for the fairness committee.
[18]
However at some point,
they were informed by the CRA that they should be filing a notice of objection.
[19]
Subsection 301(1.1) of
Part IX of the Excise Tax Act (the “GST Act”) provides a taxpayer
with the right to file a notice of objection with respect to an assessment
issued by the Minister denying a rebate claim. The notice of objection must be
filed within 90 days of the day the notice of assessment is sent to the person.
In the present case, this 90 day period expired on June 3, 2008.
[20]
Section 303 of the GST
Act contains provisions that allow a taxpayer to make an application to the
Minister of National Revenue to extend the time for filing of the notice of
objection.
[21]
However, subsection
303(7) of the GST Act provides that the Minister is not permitted to
grant such an extension, unless the request is filed within one year after the
expiration of the time limited by subsection 301(1.1).
[22]
In other words, the
Minister does not have the right to grant an extension in respect of a notice
of objection filed more than one year after the expiration of the 90 day period
for the filing of the notice of objection.
[23]
In the present case,
the last day for the filing of the notices of objection was June 3, 2008. The
notices of objection were filed on June 19, 2009, more that one year
after June 3, 2008.
[24]
In such a situation, the
Minister does not have the discretion to accept the late filed notices of
objection.
[25]
Section 304 of the GST
Act contains provisions that allow a taxpayer to request this Court to make
an order requiring the Minister of National Revenue to accept the late filed
notice of objection.
[26]
However, subsection
304(5) of the GST Act provides that the Court is not permitted to make
an order extending the time for the filing of the Notice of Objection, unless
the request for the extension of time for the filing of the Notice of Objection
was filed with the Minister of National Revenue within one year after the
expiration of the 90 day period for the filing of the notice of objection.
[27]
In short, this Court
does not have the jurisdiction to grant an extension in respect of a notice of
objection that is filed after the one year period.
[28]
As noted previously,
the notices of objection in the present case were filed after the expiration of
the one year period.
[29]
Unfortunately, in such
a situation there is nothing that the Court can do. It simply does not have the
jurisdiction to extend the time for the filing of the notices of objection
[30]
I am extremely troubled
by the result in this case.
[31]
I am concerned that the
delay in the filing of the notices of objection was a result of the Applicants’
belief that the matter was being dealt with by the CRA’s fairness committee. I
am also troubled that the Applicants were not able to obtain the contact
information for the fairness committee.
[32]
I would strongly
suggest that the Respondent’s counsel obtain the contact information for the
fairness committee and provide such information to the Applicants. Further, I
would suggest that the Respondent’s counsel ensure that his client provides the
facts of this case to its fairness committee.
[33]
Unfortunately for the Applicants,
I have no choice but to dismiss the applications.
[34]
There will no order
with respect to costs.
Signed at Ottawa, Canada, this 17th
day of November, 2009.
“S. D’Arcy”
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