Date: 19990624
Docket: 1999-914-IT-APP
BETWEEN:
CONSTRUCTION DINAMO INC.,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Lamarre Proulx, J.T.C.C.
[1] This is an application under section 166.2 of the
Income Tax Act (“the Act”) to extend the time
for serving a notice of objection. The application was sent by
registered mail on February 1, 1999, which was the expiration
date of the time limit of 90 days after the day on which
notification of the decision by the Minister of National Revenue
(“the Minister”) was mailed. The Court received the
application on February 3, 1999.
[2] The respondent’s position is that the application
must be dismissed because it was received by the Court after the
expiration of the 90 days.
[3] Subsections 166.2(1) and (2) of the Act read as
follows:
(1) A taxpayer who has made an application under subsection
166.1 may apply to the Tax Court of Canada to have the
application granted after either
(a) the Minister has refused the application, or
(b) 90 days have elapsed after service of the
application under subsection 166.1(1) and the Minister has not
notified the taxpayer of the Minister’s decision,
but no application under this section may be made after the
expiration of 90 days after the day on which notification of the
decision was mailed to the taxpayer.
(2) An application under subsection (1) shall be made by
filing in the Registry of the Tax Court of Canada, or by
sending by registered mail addressed to an office of the
Registry, 3 copies of the documents referred to in subsection
166.1(3) and 3 copies of the notification, if any, referred to in
subsection 166.1(5).
(Emphasis added.)
[4] It is my view that the wording of subsection 166.2(2) of
the Act means that the date an application is sent by registered
mail is the date the application is made. Why else would this
subsection provide that an application may be sent by registered
mail? The Tax Court of Canada Rules (Informal Procedure)
(“the Rules”) say nothing about the date the document
is submitted, although it is clear in law that rules cannot
change the terms of the Act.
[5] It is interesting to note that subsection 18(2) of the
Tax Court of Canada Rules (General Procedure) states that,
where a document is filed by registered mail, the date of mailing
shall be the date of its filing unless the Court directs
otherwise.
[6] In Diane Bordieri v. The Queen
(A-336-94, April 27, 1995), [1995] 2 C.T.C. 15,
the Federal Court of Appeal described the methods for making an
application for an extension of time:
In our view, the only legal methods authorized for the making
of such an application to the Tax Court are those provided for in
subsection 166.2(2) of the statute. The method adopted by the
applicant is not one that was authorized by the statute, both of
whose methods of making such an application are mandatory. This
Court is simply not able to ignore the clear language of the
statute by sanctioning the method which failed. Put shortly, that
method was not one that the statute authorized because it did not
consist of either filing in person or by registered mail, both of
which methods provide the certainty that any unauthorized method
does not provide. Any other method of filing as is not already
authorized can only be one that Parliament itself may decide to
adopt. Finally, we can find nothing in section 166.2 as a whole
which would allow this Court to disregard the plain language of
subsection 166.2(2) in the circumstances before us.
[7] In conclusion, the computation of the time for making an
application under section 166.2 of the Act requires not that the
application be received but that it be sent by registered mail.
Since the respondent submitted no reasons other than that the
application was made outside the mandatory time limit, the
application is accordingly granted and the notice of objection
received with the application is regarded as validly served.
Signed at Ottawa, Canada, this 24th day of June 1999.
“Louise Lamarre Proulx”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]
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