Citation:
2014 TCC 295
Date: 20140930
Docket: 2014-426(IT)APP
BETWEEN:
LAURENA
POOT,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent;
Docket:
2014-723(IT)APP
AND BETWEEN:
JEROME
POOT,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Woods J.
Introduction
[1]
Laurena Poot and Jerome Poot have applied to
this Court for relief from decisions of the Minister of National Revenue dated
November 4, 2013 that denied an extension of time to file notices of objection
under the Income Tax Act for the 2000 taxation year (Notices of Appeal,
paragraph (b)).
[2]
The relief that is being sought is set out in
paragraph (g) of the Notices of Appeal as follows:
[…] to review the decision of the Chief of
Appeals and direct the Canada Revenue Agency to (i) allow the Notice of
Objection and (ii) review the tax-payer relief request for interest and
penalties;
[3]
The only issue that is appropriate for this
Court to consider is whether an extension of time should be granted to file
notices of objection to reassessments for the 2000 taxation year. The Court may
grant this relief pursuant to subsection 166.2(1) of the Income Tax Act,
provided that certain legislative requirements have been satisfied.
[4]
As noted above, the applicants seek other forms
of relief. This relief cannot be granted because the Court lacks jurisdiction
over these matters. In particular, the Court has no authority to direct the
Canada Revenue Agency to allow a notice of objection unless a proper appeal to
this Court has been instituted, and the Court has no authority to allow a
taxpayer relief request for a waiver of interest and penalties. The Federal
Court, and not the Tax Court, generally has jurisdiction over taxpayer relief
requests.
Discussion
[5]
Since the relief requested by the applicants
cannot be granted, it is appropriate to consider whether the Court should grant
an order extending the time to file notices of objection to reassessments. The
legislative requirements that must be satisfied are set out in s. 166.2(5) of
the Act, which is reproduced below.
166.2(5) When application to be granted -
No application shall be granted under this section unless
(a) the
application was made under subsection 166.1(1) within one year after the
expiration of the time otherwise limited by this Act for serving a notice of
objection or making a request, as the case may be; and
(b) the
taxpayer demonstrates that
(i) within the
time otherwise limited by this Act for serving such a notice or making such a
request, as the case may be, 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 object to the assessment or make the request,
(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, and
(iii) the
application was made under subsection 166.1(1) as soon as circumstances
permitted.
[6]
The submissions made on behalf of the applicants
focus on paragraph (b) of the provision above. In particular, it is submitted
that that the applicants had a bona fide intention to object, that it
would be just and equitable to grant the application, and that there are
reasonable grounds for the appeals.
[7]
The problem that I have with this submission is
that it is not sufficient for the applicants to satisfy the requirements in
paragraph (b) alone. They must also satisfy the requirement in paragraph (a).
The legislation makes this clear by inserting the word “and” between the two
paragraphs.
[8]
In this case, the agent for the applicants
appears to acknowledge that the requirement in s. 166.2(5)(a) has not been
satisfied.
[9]
Paragraph 166.2(5)(a) requires that an
application be made to the Minister for an extension of time within a deadline,
which in this case is October 4, 2008. Unfortunately for the applicants, there
is no evidence that this was done.
[10]
Although the applicants and their accountant
engaged in correspondence with the Canada Revenue Agency (CRA) before the
October 4, 2008 deadline, none of the correspondence can reasonably be viewed
as applications to extend time, or as notices of objection.
[11]
The first correspondence consists of undated
letters sent by the applicants’ accountant, Barry Mitchell (Ex. A-2 and A-3).
They were received by the CRA on January 16, 2007 (Ex. R-1).
[12]
These letters purport to be notices of objection
to “pending” reassessments. Mr. Mitchell was not able to testify as to the
circumstances of the letters since he unfortunately became very ill during this
time and subsequently died.
[13]
The CRA’s response to these letters makes it
clear that they were in response to CRA “proposal letters”.
The CRA informed the applicants that the information provided was not a
satisfactory response to the proposal letters and that reassessments would be
issued in due course. The applicants were also informed as to the requirement
to file notices of objection if they wished to object to the reassessments.
[14]
In these circumstances, the letters written by
Mr. Mitchell cannot reasonably be interpreted as notices of objection to
reassessments. I agree with the submissions of counsel for the respondent that
the case of Persaud v The Queen, 2013 TCC 405, is distinguishable on its
facts.
[15]
A subsequent letter was sent by Mr. Poot and
addressed to “to whom it may concern”. The letter
was dated November 3, 2007 and requested a waiver of interest and penalties.
[16]
This letter does not purport to be a notice of
objection and it would not be appropriate to consider that it is. Based on the letter
and the testimony of Mr. Poot, it appears that the letter was intended to
be an application for taxpayer relief for a waiver of interest and penalties on
equitable grounds. This is not a notice of objection.
[17]
I have concluded that the applicants have not
satisfied the requirement set out in s. 166.2(5)(a) and therefore the
applications must be dismissed.
Signed at Toronto, Ontario this 30th day of September 2014.
“J.M. Woods”
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