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Citation: 2003TCC262
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Date: 20030411
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Docket: 2002-4494(IT)APP
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BETWEEN:
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GEORGE PAPADIONYSIOU,
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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
Lamarre, J.T.C.C.
[1] The application for an extension
of the time within which the applicant may file with this Court a
Notice of Appeal regarding reassessments dated October 17, 2000
made by the Minister of National Revenue ("Minister")
with respect to the applicant's 1998 and 1999 taxation years
is dismissed.
[2] The Minister initially assessed
the applicant's income tax returns for the 1998 and 1999
taxation years by Notices of Assessment dated May 17, 1999 and
June 22, 2000 respectively and mailed to the applicant on those
dates.
[3] The Minister reassessed the
applicant's income tax returns for the 1998 and 1999 taxation
years by Notices of Reassessment dated October 17, 2000 and
mailed to the applicant on that date.
[4] On December 15, 2000, the
applicant served on the Minister a Notice of Objection to the
aforementioned October 17, 2000 reassessments.
[5] By Notice of Confirmation dated
October 29, 2001 and sent to the applicant on that same date, the
Minister confirmed the said reassessments.
[6] On November 21, 2002, the
applicant's agent filed with the Court a Notice of Appeal in
which he sought an order extending the time within which the
appeal could be instituted.
[7] The time limit for filing an
appeal is found in subsection 169(1) of the Income Tax Act
("Act"):
SECTION 169: Appeal.
(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 to have the assessment vacated or varied after
either
(a) the Minister has confirmed the assessment or
reassessed, or
(b) 90 days have elapsed after service of the notice of
objection and the Minister has not notified the taxpayer that the
Minister has vacated or confirmed the assessment or
reassessed,
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.
[8] A taxpayer may request an
extension of time for instituting an appeal if certain
requirements are met, as may be seen in subsections 167(1) and
167(5) of the Act:
SECTION 167: Extension of time to appeal.
(1) Where an appeal to the Tax Court of Canada has not been
instituted by a taxpayer under section 169 within the time
limited by that section for doing so, the taxpayer may make an
application to the Court for an order extending the time within
which the 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.
4167(5)3
(5) When order to be made. No order shall be made under
this section unless
(a) the application is made within one year after the
expiration of the time limited by section 169 for appealing;
and
(b) the taxpayer demonstrates that
(i) within the time otherwise limited by section 169 for
appealing the taxpayer
(A) was unable to act or to instruct another to act in the
taxpayer's name, or
(B) 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, and
(iv) there are reasonable grounds for the appeal.
[9] Although the applicant's
agent, Mr. Allan Scope, C.G.A., was present to explain why he
himself did not file the Notice of Appeal on time, the appellant
was not in Court to explain why he was unable to act or to
instruct someone other than Mr. Scope to act on his behalf within
the time otherwise limited by section 169 of the Act
for appealing the reassessments in question, as required by
clause 167(5)(b)(i)(A) of the Act.
[10] Mr. Scope testified that he was
fighting cancer and was about to start chemotherapy treatments
when the applicant received the Notice of Confirmation dated
October 29, 2001 confirming the October 17, 2000 reassessments.
At that time, the applicant informed Mr. Scope that he had
received the Notice of Confirmation but it does not seem that the
applicant, despite being aware of Mr. Scope's health
problems, followed-up himself or instructed anyone else to
follow-up regarding his tax matters. It was only on November 21,
2002, that Mr. Scope finally filed a Notice of Appeal with a
request for an extension of time. The time for filing a Notice of
Appeal had expired on January 27, 2002.
[11] The testimony of Mr. Scope alone was
not sufficient to demonstrate either that the applicant had a
bona fide intention to appeal the reassessments at issue
within the time otherwise limited by section 169 of the
Act, as required by
clause 167(5)(b)(i)(B) of the Act, or that the
present application was made as soon as circumstances permitted,
as required by subparagraph 167(5)(b)(iii) of the
Act.
[12] Although duly notified by Mr. Scope of
the date and time of the hearing of the present application for
an extension of time for filing a Notice of Appeal, the applicant
was not present and signed no affidavit explaining why he did not
comply with the time restrictions imposed by the Act with
respect to the filing of a Notice of Appeal.
[13] For these reasons, I do not have any
choice but to dismiss the application.
Signed at Ottawa, Canada, this 11th day of April 2003.
J.T.C.C.
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