[OFFICIAL ENGLISH
TRANSLATION]
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Reference: 2004TCC165
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Date: 20040526
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Docket: 2003-3570(GST)APP
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BETWEEN:
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AIR LIQUIDE CANADA INC.,
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Applicant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
AMENDED REASONS FOR ORDER
McArthur J.
[1] This is an application to extend the time, under
section 305 of the Excise
Tax Act (the “Act”), for
appealing from an assessment.
[2] Based
on the facts, the Respondent made a reassessment on or about May 16, 2003. The
Applicant objected to this assessment. Meetings were held between the
Applicant and its agents prior to May 16, 2003, in order to prepare the
objection to this reassessment before the Tax Court of Canada.
[3] The
Applicant did not appeal to the Court within the time period prescribed
by section 306 of the Act, namely, within
90 days after the day on which the Notice of Reassessment was sent to it. The
application before the Court was made 53 after the expiry of the time period.
Subsection of the Act reads as follows:
305(5) No order shall be made under this section unless
(a)
the application is
made within one year after the expiration of the time otherwise limited by this
Part for appealing; and
(b)
the person
demonstrates that
(i)
within the time
otherwise limited by this Part for appealing,
(A)
the person was unable
to act or to give a mandate to act in the person's name, or
(B)
the person had a bona
fide intention to appeal,
(ii)
given the reasons set
out in the application and the circumstances of the case, it would be just and
equitable to grant the application,
(iii)
the application was
made as soon as circumstances permitted it to be made, and
(iv)
there are reasonable
grounds for appealing from the assessment.
[4] All
of these conditions must be fulfilled. The conditions set out in paragraph
305(5)(a) and subparagraph 305(5)(b)(i) definitely have been
met. I accept the Applicant’s statement that one of the business’s external
accountants/tax specialists had communicated his intention to retain the services
of Lavery, de Billy to file the Notice of Appeal required to challenge the
Notice of Reassessment resulting from the Minister’s decision with respect to
the Notice of Objection and that this communication did take place before the
decision regarding the objection was rendered, as supported by the affidavit of
Mr. Patrice Forget, a chartered accountant, filed as Exhibit R-2 in support of
the application for extension.
[5] Ms.
Lisa Fluet, the Applicant’s internal tax specialist, had asked Samson Bélair/Deloitte
& Touche to handle the matter of protecting the Applicant’s rights
following the decision regarding the objection, as supported by the affidavit
filed as Exhibit R-3 in support of the request for extension.
[6] Given
the reasons set out in the application and the circumstances in this case, I
conclude that it is just and equitable to grant the Applicant’s application.
The application was filed as soon as circumstances allowed.
[7] The
request for an extension to appeal from the assessment includes the following
statements, as set out in paragraph D:
[Translation]
1. With respect
to the time period, case law appears to establish that there is no prejudice to
the Crown in allowing the extension.
2. In the case
overall, we believe that it is in the interest of justice to allow the
extension.
3. The Applicant
could appeal as of right to this honourable Court from the Notice of
Reassessment resulting from the Minister’s decision.
4. If not for a
misunderstanding between the Applicant’s accountants and the Applicant’s
internal tax specialist, the Applicant’s appeal would have been filed within
the prescribed timeframe.
5. Refusal to
grant this application would unduly penalize the Applicant and prevent it from
exercising its rights and would not be in the interest of justice.
[8] The
Applicant states that the issue is based on the decision of this honourable
Court in La Brasserie Labatt Limitée v. The Queen, docket
2000-4443(GST)I, a decision rendered on August 24, 2001.
[9] The
arguments raised by the Respondent in paragraph 16 of the Reply to the
Application for an Extension of Time to file an appeal include the following:
[Translation]
The Respondent maintains that the
application must be dismissed because the Applicant does not provide any
reasons why the appeal was not filed within the prescribed timeframe, contrary
to one of the conditions set out in subsection 305(5) of the Act to allow the
application, namely, the condition provided for at subparagraph 305(5)(b)(ii)
of the Act, which refers implicitly to subsection 305(2) of the Act.
[10] The Agents for the Applicant are experienced in tax matters, and I am
persuaded that the grounds for appeal are not frivolous. I find that there are
reasonable grounds for the appeal and that the condition set out in
subparagraph 305(5)(b)(iv) of the Act has been fulfilled.
[11] Therefore, the application is allowed.
Signed at Ottawa, Canada, this 26th
day of May 2004.
McArthur
J.
Certified true
translation
Colette
Dupuis-Beaulne
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