McCarthey v. The Queen, docket 2000-4882-GST-APP

Date: 20010404

Docket: 2000-4882-GST-APP

BETWEEN:

DAVID JOHN McCARTHEY,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for order

Lamarre Proulx, J.T.C.C.

[1]            This is an application for an order, made pursuant to paragraph 304(1) of the Excise Tax Act (the "Act"), to have the application made to the Minister of National Revenue (the "Minister") granted in a matter where the Minister has refused the application to extend the time for filing a Notice of Objection to an assessment.

[2]            The assessment was made on December 8, 1997 and there is no allegation that the Applicant has not received the notice of the said assessment.

[3]            The Applicant, on or about June 9, 2000, some 455 days after the date of the Notice of Assessment, made an application to the Minister to extend the time for filing a Notice of Objection.

[4]            On November 1, 2000, the Minister notified the Applicant that the application for an extension of time could not be accepted on the ground that the application had not been filed within one year after the expiration of the ninety day time limit for objecting, as required by paragraph 303(7)(a) of the Act.

[5]            The application mentioned in paragraph [1] was filed with the Registrar of this Court on or about November 27, 2000.

Conclusion

[6]            The Applicant did not comply with subsection 301(1.1) of the Act nor with paragraph 303(7)(a) of the Act. The Minister has discretion to extend the time limit provided for in subsection 301(1.1) of the Act. There is no such discretion to extend the time limit provided for in paragraph 303(7)(a) of the Act. That provision sets a definitive time limit within which an application to extend the time specified at subsection 301(1.1) of the Act may be made. By its purpose, paragraph 301(7)(a) is imperative.

[7]            Paragraph 304(5)(a) has for purpose to determine the time limit within which the Court has authority to act. It confirms as definitive the time limit provided for in paragraph 303(7)(a) of the Act. The Court does not have discretion to extend that time limit. The only discretion that it has is to extend the 90-day period provided for in subsection 301(1.1) of the Act.

[8]            The application is therefore dismissed.

Signed at Ottawa, Canada, this 4th day of April, 2001.

« Louise Lamarre Proulx »

J.T.C.C.