2004 and 2005 taxation years
[4]
On December 28, 2005, the
Minister sent the Appellant a notice of reassessment for the 2004 taxation
year. On June 5, 2006, the Minister sent the Appellant a notice of assessment
for the 2005 taxation year. On or around March 30, 2006, for the 2004 taxation
year and July 15, 2006, for the 2005 taxation year, the Appellant served on the
Minister a notice of objection to the reassessment of December 28, 2005, and
the assessment of June 5, 2006. On August 9, 2006, the Minister notified the
Appellant by registered mail that the reassessment dated December 28, 2005, for
the 2004 taxation year and the assessment dated June 7, 2006, for the 2005
taxation year had been confirmed.
[5]
On September 18, 2006, the
Appellant sent the Court a letter, the pertinent portion of which reads:
[TRANSLATION]
To whom it may concern:
Appeal to the Tax Court of Canada regarding the interpretation of an
application for a settlement agreement and the proper, fair and reasonable treatment
of income tax and benefit returns for the 1997 to 2005 taxation years…
[6]
On October 28, 2006,
Donald Ringuette, a Court Registry officer, sent the Appellant a letter, the pertinent
portion of which reads:
[TRANSLATION]
This is to acknowledge receipt of your letter concerning the notice
of appeal and to follow up on my telephone call of this past October 16. Upon
examining the information you provided, we have noted that some essential
information is missing.
According to the Tax Court of Canada Rules of Practice and Procedure (IT, GST, EI, etc.), some basic information is required in order
for your notice of appeal to be filed and the matter heard. We therefore ask
that you provide the following information:
-
the procedure chosen (informal or general)
-
the filing fee (applicable judicial fee)
-
the facts and the grounds for the appeal
Please send this information within 30 days of the date of this
letter. Otherwise, we will not be able to open a file and it will not be
possible for your appeal to be heard.
Enclosed, for your information, is a pamphlet about income tax
appeals that you can adapt to fit your circumstances and return to us as soon
as possible.
[…]
[7]
On October 11, 2007
(approximately 11 months after receipt of the letter of October 28, 2006), the
Appellant sent the Court a notice of appeal in regard in particular to the 2004
and 2005 taxation years (notice of appeal of October 11, 2007).
[8]
In a letter dated
October 12, 2007, the Court Registry advised the Appellant that he was out of
time for filing an appeal. The deadline for filing an appeal in this case was
November 7, 2006. In that same letter, the Appellant was advised that he was
nonetheless within the time frame provided for under the Act for applying to
the Court for an extension of time to appeal. The deadline for filing such an
application in this case was November 7, 2007.
[9]
On November 6, 2007,
the Appellant sent the application for an extension of time to appeal, by
registered mail.
[10]
There were two issues
in this case:
(a)
whether the Appellant made
the application for an extension as soon as possible or as soon as
circumstances permitted
(b)
whether there were
reasonable grounds for appealing
[11]
In regard to the first
issue, the Appellant testified that, during the period from October 1, 2006, to
September 30, 2007, he had had back problems that had prevented him from making
such an application for an extension. The Appellant maintained that he had made
his application for an extension as soon as possible under the circumstances, that
is, when his health had permitted.
[12]
The Appellant's
evidence regarding his health was based on his testimony, which was not
supported by any sound documentary evidence or credible independent testimony.
The Appellant could not hope to satisfy the Court that he had been unable to
act by making statements that not only were vague and imprecise, but also
conflicted with documents he himself had filed. The Appellant's testimony in
this case as to the nature of his back problems was vague and imprecise to say
the least and made no mention of the nature of the treatment and care he had received
or of any medication he had been prescribed. The Appellant's testimony as to
his alleged complete inability to tend to his tax matters or even direct a
third party to do so for him is contradicted by his notice of appeal of October
11, 2007, in which, the Court notes, the Appellant indicated having contacted
the Court Registry at least three times in November 2006—in other words, during the alleged period
of incapacity.
[13]
Finally, the Court emphasizes
that, according to the Appellant's own testimony, his alleged incapacity ended
in late September 2007. There was consequently nothing to stop the Appellant
from making such an application for an extension at that point, yet the
Appellant filed his application for an extension more than five weeks after the
end of his alleged period of incapacity, which in the Court's view is much too
long a period of time under the circumstances.
[14]
Although there is no
need to address the second issue, given the Court's conclusion that the
Appellant did not make his application for an extension as soon as possible, it
is the Court's view that the application could also be dismissed on the basis
that the Appellant failed to demonstrate that there were reasonable grounds for
his appeal. In fact, the Appellant's testimony concerning the grounds for his
appeal is barely comprehensible. The Court is of the view that the issues
raised and remedies sought for the 2004 and 2005 taxation years were already
analyzed by the Court in a decision
against the Appellant rendered by Mr. Justice Archambault. In the matter heard
by Archambault J., the Appellant sought in particular to deduct from his
employment income a "failure to earn" amount, that is, an amount that
he would have received if his duties had been those of an inspector and he had
visited the different construction sites under the jurisdiction of the Commission
de la construction du Québec. The Court has the impression that the Appellant was
indirectly attempting to deduct from his income the same shortfall he indicated
had created losses that could be carried forward.
2000, 2001, 2002 and 2003 taxation years
[15]
With respect to the
2000 through 2003 taxation years, the application for an extension of time to
appeal must be dismissed quite simply because the right to appeal assessments
relating to those taxation years never arose, since the Appellant never served a
notice of objection to the assessments for those taxation years. Subsection 169(1)
of the Act requires a taxpayer to serve a notice of objection in order to be
able to appeal from an assessment. In other words, serving a notice is a
prerequisite to making an appeal.
1998 and 1999 taxation years
[16]
With regard to the 1998
and 1999 taxation years, the application for an extension of time to appeal
must be dismissed quite simply because an appeal was already made to the Court
from the assessments in respect of those taxation years, and that appeal was
dismissed by the Court on January 14, 2004.
Res judicata thus applies here.
1997 taxation year
[17]
With regard to the 1997
taxation year, the application for an extension of time to appeal must be
dismissed quite simply because an appeal was already made to the Court from the
assessment in respect of that year, and that appeal was dismissed by the Court
on January 23, 2001.
The Court emphasizes that the judgment of January 23, 2001, was upheld by the Federal Court of Appeal
on April 15, 2002. Res judicata thus applies here.
[18]
For all of these
reasons, the application for an extension of time to appeal in regard to the
1997 through 2006 taxation years is dismissed.
Signed at Ottawa, Canada, this
14th day of April 2008.
Translation
certified true
on this 26th day of
May 2008.
Carole Chamberlin,
Translator
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