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Docket: 2002-4383(IT)G
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BETWEEN:
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M.W. TOMASZEWSKI,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Motion heard together with the motion of M.W.
Tomaszewski (2002-4385(IT)I) on September 24, 2003 at Vancouver, British
Columbia
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By: The Honourable Justice J.M. Woods
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Appearances:
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For the
Appellant:
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The Appellant
himself
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Counsel for the
Respondent:
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Eric Douglas
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____________________________________________________________________
ORDER
UPON motion by the
Respondent for an Order quashing appeal number 2000-4383(IT)G, or
alternatively, for an Order extending the time for filing the Respondent's
Reply to the Notice of Appeal and consolidating this appeal with appeal number
2002-4385(IT)I;
AND UPON reading the
material filed, including the affidavits of Tom Chang and Ron Datta;
AND UPON hearing the Appellant and counsel for the Respondent;
IT IS ORDERED that:
1. The
Respondent's motion to consolidate this appeal with appeal number
2002-4385(IT)I is dismissed;
2. The
Respondent's motion to quash the appeal is dismissed, without costs; and
3. The Respondent shall have 60 days
from the date of this Order in which to file a Reply to the Notice of Appeal.
Signed at Ottawa, Canada, this 5th day of December,
2003.
J.M.
Woods J.
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Docket: 2002-4385(IT)I
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BETWEEN:
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M.W. TOMASZEWSKI,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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____________________________________________________________________
Motion heard together with the motion of M.W.
Tomaszewski (2002-4383(IT)G) on September 24, 2003 at Vancouver, British
Columbia
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By: The Honourable Justice J.M. Woods
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Appearances:
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For the
Appellant:
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The Appellant
himself
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Counsel for the
Respondent:
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Eric Douglas
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____________________________________________________________________
ORDER
UPON motion by the
Respondent for an Order quashing appeal number 2000-4385(IT)I, or
alternatively, for an Order extending the time for filing the Respondent's
Reply to the Notice of Appeal and consolidating this appeal with appeal number
2002-4383(IT)G;
AND UPON reading the
material filed, including the affidavits of Tom Chang and Ron Datta;
AND UPON hearing the Appellant and counsel for the Respondent;
IT IS ORDERED that:
1. The
Respondent's motion to consolidate this appeal with appeal number
2002-4383(IT)G is dismissed;
2. The
Respondent's motion to quash the appeal is dismissed, without costs; and
3. The Respondent shall have 60 days
from the date of this Order in which to file a Reply to the Notice of Appeal.
Signed at Ottawa, Canada, this 5th day of December,
2003.
J.M.
Woods J.
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Citation: 2003TCC719
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Date: 20031205
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Docket: 2002-4383(IT)G
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BETWEEN:
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M.W. TOMASZEWSKI,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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Docket: 2002-4385(IT)I
BETWEEN:
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M.W. TOMASZEWSKI,
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Appellant,
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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
Woods J.
[1] In this motion, the Crown seeks an order quashing appeals
filed by Max Tomaszewski on the ground that the appeals were instituted several
years beyond the time limit in subsection 169(1) of the Income Tax Act. Mr. Tomaszewski responded to the motion by
submitting that the appeals were not out of time because notices of
reassessment were never mailed to him.
[2] The Crown submits that notices of
reassessment were mailed to Mr. Tomaszewski. In the alternative, the Crown
suggests that, if the notices were not mailed but communicated in some other
fashion, the appeals would still be out of time even though the statute bar
period in subsection 169(1) runs from the date of mailing. This argument was
based on an alleged inconsistency in the wording of subsections 169(1) and
165(3).
Facts
[3]The Minister of National Revenue issued
notices of reassessment dated November 22, 1996 in respect of Mr. Tomaszewski's
1992, 1993, 1994 and 1995 taxation years. Notices of Objection to these
reassessments were duly filed and, on August 22, 1997, the Minister issued further notices of reassessment in
respect of the 1993, 1994 and 1995 taxation years and a notice of confirmation
for the 1992 taxation year (collectively, the Notices).
[4] According to Mr. Tomaszewski, neither he, nor the
accounting firm that normally received his tax correspondence, received the
Notices. However, he knew of an outstanding tax assessment and, at first, did
not intend to appeal because the arrears were not large. For a period of time
he attempted to work out a satisfactory arrangement for payment with the
collections department at the Canada Customs and Revenue Agency. Eventually,
the collections department began more aggressive collection action by seeking
payment from third parties. As a result, Mr. Tomaszewski decided to investigate
whether it was still possible to appeal the reassessments even though several
years had elapsed. He concluded that it was possible to appeal because he had
never received the Notices. Accordingly, on November 4, 2002 Mr. Tomaszewski
filed notices of appeal in respect of the August 22, 1997 Notices.
[5] The Crown took the position that the Notices
had been mailed on August 22, 1997 and submitted in support
affidavits of a collections officer and a tax litigation officer. The
affidavits of the collections officer were introduced to establish that Mr.
Tomaszewski was aware of the outstanding tax liability. An excerpt from those
affidavits reads:
On 3 September 2002, during a phone call I
received from Mr. Tomaszewski, he inquired about a Notice of Objection that was
filed in 1997 and was denied. He further questioned me regarding whether he
could appeal that denial.
The affidavits of the tax
litigation officer were introduced to establish that the Notices were mailed.
The relevant part of these affidavits reads:
2. I have charge of the appropriate
records of the Agency and have knowledge of its practises. ...
5. My examination of the Agency's
records shows that further Notices of Reassessment for the 1993 and 1994
taxation years were mailed or otherwise communicated to the Appellant on
August 22, 1997 …
7. At the time that the Appellant's Notices of
Objection were being considered by the Agency, it was the policy of the Agency
to mail out a Notice of Confirmation on the same date that any related Notices
of Reassessment were sent out in situations where a taxpayer had filed
Objections to more than one taxation year.
(italics added)
[6] The CCRA tax litigation officer also
testified in person. He explained that his knowledge about the Notices was
derived from the CCRA's mainframe computer which was the only available source
of information about the reassessments. Notwithstanding that his affidavits
state that the Notices were "mailed or otherwise communicated," he
stated that he believed they were mailed. This was based on a reference in the computer to a
"RAP" date of August 22, 1997. The officer referred to the RAP date
as a reassessment date. He acknowledged that there was no specific reference in
the computer record to a mailing date but he explained "RAP" date as
follows:
... what they call the "RAP" date
... that would be the date that would show up on the computer system, and that
is our assumption that this is the date that the reassessment had been mailed
out on.
[7] When the officer was asked if he was
familiar with how confirmations and reassessments were mailed, he stated that
he was familiar with the mailing of confirmations because he once worked in
that department. However, he was not familiar with the mailing of
reassessments. In this regard he stated:
The reassessments are computer generated,
and my assumption is that they're mailed out by ordinary mail, as far as I can
tell. I've never seen the actual computer reassessment being generated and
mailed out. I'm not sure how that procedure works.
Statutory Provisions
Subsection 165(3)
of the Act provides:
(3) On receipt of a
notice of objection under this section, the Minister shall, with all due
dispatch, reconsider the assessment and vacate, confirm or vary the assessment
or reassess, and shall thereupon notify the taxpayer in writing of the
Minister's action.
(italics added)
Subsection 169(1)
of the Act provides:
(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 …
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.
(italics added)
Analysis
[8] In order to succeed on this motion, the
Crown has the onus of establishing that notices of appeal were not filed, as
required by subsection 169(1), within 90 days from the day the Notices were
"mailed to the taxpayer under section 165." If the Notices were not
"mailed under section 165," Mr. Tomaszewski is entitled to appeal to
the Tax Court of Canada notwithstanding the lengthy delay.
Interpretation of mailed
[9] The Crown suggests that the affidavits of
the tax litigation officer are sufficient proof that the Notices were mailed on
August 22, 1997. One difficulty with this suggestion is that the affidavits don't state that the notices of
reassessment were mailed. The phrase used in the affidavits is "mailed or otherwise
communicated."
In response
to this difficulty the Crown
suggests that the time period in subsection 169(1) should start to run from the
time a notice of reassessment is communicated and that the word
"mailed" in subsection 169(1) should be interpreted accordingly. It
is suggested this interpretation is required in order that the 90 day
limitation period start to run when the Minister has fulfilled the duty imposed
on him by subsection 165(3) to notify the taxpayer in writing. I find
that it is not necessary to decide this issue because I am not satisfied, based
on the evidence as a whole, that the Notices were either mailed or otherwise
sent to Mr. Tomaszewski.
Proof of mailing
[10] In order for the
Crown to establish that notices of assessment are mailed, it is not necessary
to produce a witness with a first
hand recollection. However, some knowledge of mailing procedures is necessary.
Bowman J. (as he then was) discussed the type of evidence required in Schafer
v. The Queen:
In a large organization, such as a
government department, a law or accounting firm or a corporation, where many
pieces of mail are sent out every day it is virtually impossible to find a
witness who can swear that he or she put an envelope addressed to a particular
person to the post office. The best that can be done is to set out in detail
the procedures followed, such as addressing the envelopes, putting mail in
them, taking them to the mail room and delivering the mail to the post office.
A similar view was recently expressed by Rothstein
J.A. in Kovacevic v. The Queen:
I accept that when legislation requires
that documents be sent by a large organization such as a government department
by ordinary mail, but does not require registered or certified mail or evidence
of a more formal means of sending, the observation of Bowman J. in Schafer is
reasonable. Generally it would be sufficient to set out in an affidavit, from
the last individual in authority who dealt with the documents before it entered
the normal mailing procedures of the office, what those procedures were.
[11] By virtue of subsection 244(10), the
affidavits of the tax litigation officer are evidence of the statements
contained therein. They should be taken into account along with the officer's
oral testimony. As for the mailing of these Notices, the officer had no personal knowledge. His involvement
with this matter was to assist in the litigation process, not the reassessment
process. As for CCRA mailing procedures in general, the officer stated that he assumed that the RAP
date referenced in the computer record is the date that notices of reassessment
are mailed out. However, he had no knowledge of the CCRA's practises regarding
the mailing of reassessments and he did not explain what his assumption was
based on. Based on his evidence as a whole, I am not satisfied that he
understood what the reference to "RAP" date meant. Accordingly there
is not sufficient evidence for me to conclude that the notices of reassessment
for the 1993, 1994 and 1995 taxation years were mailed or otherwise sent on August
22, 1997, or sent at all.
[12] As for the notice of confirmation for the
1992 taxation year, the Crown similarly has failed to establish that it was
mailed or otherwise sent to Mr. Tomaszewski. The tax litigation officer stated
that, under the CCRA's usual procedures, notices of confirmation are sent by
registered mail at the same time that notices of reassessment are mailed. Since
the mailing of the notices of reassessment for the 1993, 1994 and 1995 taxation
years has not been proven, the mailing of the notice of confirmation for the
1992 taxation year similarly has not been proven.
[13] The Crown also suggests that the fact that Mr.
Tomaszewski acknowledged a tax debt in dealing with the collections department
implies that the Notices had been mailed. The collections officer stated in his
affidavits that Mr. Tomaszewski knew that his Notices of Objection had been
denied. This does not establish that Mr. Tomaszewski had received the Notices
and certainly is not evidence of mailing. The Crown's argument was considered,
and rejected, by the Federal Court of Appeal in Aztec Industries Inc. v. The
Queen.
Hugessen J.A. stated:
Knowledge of the fact that the Minister was
asserting a claim, and payment of a portion therefore by or on behalf of the
taxpayer does not constitute evidence of the existence or the mailing of
notices of assessment.
[14] The evidence of mailing on this motion is
insufficient to establish that the Notices were mailed or otherwise sent to Mr.
Tomaszewski or his authorized agent. The motion to quash the appeals is
dismissed. The Respondent will have 60 days from the date of the order in which
to file a Reply to each Notice of Appeal.
Signed at Ottawa,
Canada, this 5th day of December, 2003.
J.M.
Woods J.
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