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Docket: 2003-2648(GST)APP
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BETWEEN:
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FENTON GROUP INVESTMENT CO. LIMITED,
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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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____________________________________________________________________
Application heard on October 22, 2003 at Winnipeg,
Manitoba
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Before: The
Honourable Justice L.M. Little
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Appearances:
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For the
Applicant:
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The Applicant
himself
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Agent for the
Respondent:
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Julien Bedard
Student-at-Law
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____________________________________________________________________
ORDER
Upon application for an Order extending the time within which a
Notice of Appeal to the Reassessment may be filed;
And upon hearing what was alleged by the parties;
The application is dismissed in accordance with the attached
Reasons for Order.
Signed at Vancouver,
British Columbia, this 28th day of November 2003.
Little,
J.
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Citation: 2003TCC867
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Date:20031128
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Docket: 2003-2648(GST)APP
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BETWEEN:
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FENTON GROUP INVESTMENT CO. LIMITED,
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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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REASONS FOR ORDER
Little, J.
A. FACTS:
[1] The
Applicant is a company incorporated under the laws of the Province of Manitoba.
[2] By
Notice of Assessment dated May 8, 2001 the Minister of National Revenue (the
"Minister") assessed the Applicant tax under the Excise Tax Act (the
"Act") for the periods between January 1, 1999 and
December 31, 2000.
[3] The
Applicant filed a Notice of Objection to the Notice of Assessment within the
time limit specified in subsection 301(1) of the Act.
[4] On
November 22, 2002 the Minister issued a Notice of Reassessment (the
"Reassessment"). The said Reassessment reassessed the Applicant to
impose net tax of $4,051.00, a penalty of $219.14 and interest of $206.86.
[5] The
Reassessment was sent to the Applicant in a registered letter dated November
22, 2002. The registered letter contained the following statement:
Section 306 of the Excise Tax Act
provides that you may appeal the Assessment to the Tax Court of Canada
within 90 days from the date of this Notice.
[6] The
Applicant did not file a Notice of Appeal to the Reassessment within the 90-day
time period specified by the Act.
[7] On
July 11, 2003 the Applicant filed a document entitled "Application to
Extend Time" with the Court. (Note: The document that was filed
with the Court was dated by the Applicant July 24, 2004 but was stamped by an
official of the Court in Ottawa on July 11, 2003.)
[8] The
document that was filed with the Court by the Applicant contained the following
statement:
All the necessary steps were taken
to resolve the dispute until May 30, 2003, however I didn't receive any
resolvable response as of the date of this application.
B. ISSUE:
[9] Should
the Applicant be granted an extension of time within which to file a Notice of
Appeal to the Reassessment?
C. ANALYSIS:
[10] Section 305 of Part IX of the Act reads as follows:
305. (1) Where no appeal to the Tax Court under
section 306 has been instituted within the time limited by that provision for
doing so, a person may make an application to the Tax Court for an order
extending the time within which an appeal may be instituted, and the Court may
make an order extending the time for appealing and may impose such terms as it
deems just.
(2) An application made under subsection (1) shall set
out the reasons why the appeal to the Tax Court was not instituted within the
time otherwise limited by this Part for doing so.
(3) An application made under subsection (1) shall be
made by filing with the Registrar of the Tax Court or by sending to the
Registrar by registered mail three copies of the application accompanied by
three copies of the notice of appeal.
(4) After receiving an application made under this
section, the Tax Court shall send a copy of the application to the office of
the Deputy Attorney General of Canada.
(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.
[11] I have concluded that the request made by the Applicant for an
extension of time within which to file a Notice of Appeal does not comply with
subsection 305(2) of the Act as it does not set out the reasons why
the appeal to the Court was not filed within the time specified in section 306
of the Act.
[12] I have also concluded that:
(a) the Applicant did
not demonstrate that it was unable to act within the time specified for
appealing under section 306 of the Act;
(b) the Applicant did not establish that it had a
bona fide intention to appeal within the time specified in section 306
of the Act; and
(c) the application to extend the time was not
made as soon as circumstances permitted as required by subparagraph
305(5)(b)(iii) of the Act.
[13] I have concluded that the Applicant has not complied with
subparagraphs 305(5)(b)(ii) and 305(5)(b)(iii) of the Act and it
has not provided reasons that demonstrate that it would be just and equitable
to grant the application and that there are reasonable grounds for appealing
the Reassessment.
[14] The application is dismissed.
Signed at Vancouver, British Columbia, this
28th day of November 2003.
Little,
J.
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