Citation: 2014 TCC 79
Date: 20140311
Docket: 2013-3290(GST)APP
BETWEEN:
AMANULLAH SAHIBI,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Lyons J.
[1]
This is an application
for an Order for an extension of time to object to reassessments made under the
Excise Tax Act (the “Act”). This application is made pursuant to
section 304 of the Act from the decision by the Minister of National
Revenue (the “Minister”) refusing to grant the applicant an extension of the
time to file notices of objection.
[2]
The notices of reassessment
were made on March 9, 2011 and April 12, 2011 for the reporting periods from
January 1, 2006 to December 31, 2006, and from January 1, 2007 to December 31,
2007, respectively (“2006” and “2007” and collectively the “Periods”).
[3]
The applicant admitted
that he did not file notices of objection (“Objections”) to the reassessments
for the Periods within the ninety days stipulated in subsection 301(1.1) of the
Act.
[4]
The applicant made an application to the Minister to extend the time for filing the Objections.
The application is dated July 23, 2012,
and was received by the Minister on July 25, 2012.
[5]
On August 24, 2012, the
Minister notified the applicant that his application was refused because it had
not been filed within one year after the expiration of the ninety-day time
limit for objecting (“one year and ninety-day time limit”), from the date of
each reassessment, as required under section 303 of the Act.
[6]
On August 29, 2013, the
applicant filed with the Registrar of this Court an application to extend the
time for filing Objections.
[7]
The applicant contends
that he filed an application with the Minister within the one year and
ninety-day time limit.
[8]
The respondent argued
that no application to extend the time to object was filed with the Minister until
July 23, 2012. Since that is beyond the one year and ninety days from the date
of each reassessment for the Periods, the applicant has failed to meet the
mandatory time limit in paragraph 303(7)(a), therefore the Court has no
jurisdiction to grant an application under section 304 of the Act.
[9]
Subsection 301(1.1) of the Act grants
to a person within ninety days, after the day the assessment is sent to the
person by the Minister, the right to file an objection with the Minister with
respect to the assessment.
[10]
If an objection is not filed
within the ninety days, section 303
of the Act enables a
person to make an application to the Minister to extend the time for filing an
objection within the one year
and ninety-day time limit for objecting.
[11]
Paragraph 303(7)(a) of the Act
lists the first condition a person must meet to obtain an extension. It
states:
(7) When
order to be made - No application shall be granted under this section
unless
(a) the
application is made within one year after the expiration of the time otherwise
limited by this Part for objecting …
[12]
If the Minister refuses to grant
the application, as in the present situation, section 304 enables a person to
apply to this Court for an order to grant an application for an extension of
time to accept a late-filed objection.
[13]
However, paragraph 304(5)(a)
of the Act does not permit this Court to grant an application unless the
application previously filed with the Minister had been made within one year
after the expiration of the ninety-day time limit for objecting, as required by
paragraph 303(7)(a) of the Act.
[14]
The applicant testified
that the primary reason he did not file Objections within the ninety days after
the reassessments (deadlines expiring on June 7, 2011 for 2006 and July 11,
2011 for 2007) is that he was misinformed by accountants and he could not
afford to pay the accountants in advance. They told him it was unnecessary to
object to the goods and services tax (“GST”) reassessments for the Periods
until after his income tax objections for 2006 and 2007 had been resolved. His
said that his other reason for not objecting within the ninety-day timeframe
was his belief that the same official at the Canada Revenue Agency (“CRA”)
should have dealt with both the income tax and GST matters.
[15]
At some point, the applicant
became aware that he was beyond the ninety‑day period for objecting.
[16]
The applicant testified
that he had filed a notice of objection form (“Form”) with the CRA indicating
his intention to object to the Periods. He estimated that it was filed possibly
four or six weeks before July 23, 2012 but he was unsure.
[17]
During a subsequent
call with the CRA, he discovered that the Form had not been received and it
took him some time to obtain another form. The other form is dated July 23,
2012 and was tendered as evidence by the respondent at the hearing showing it
was signed by the applicant and received by the CRA on July 25, 2012 (“July 23,
2012 application”). The applicant stated on the July 23, 2012 application that
it was an application to extend the time to object to the GST for the Periods,
and because of financial difficulties he was unable to hire a tax lawyer.
[18]
On August 24, 2012, the Minister notified
the applicant that he could not grant the extension as the July 23, 2012 application
was beyond the one year and
ninety-day time limit after the date of each reassessment for 2006 and 2007.
[19]
In an affidavit of May
Chui, an Officer in the Toronto office of the CRA, filed on behalf of the respondent,
Ms. Chui states that she has charge of the appropriate CRA records and has
knowledge of the CRA practices, and with respect to the applicant’s application
for an extension of time to object to the GST for the Periods she states:
11.
After a careful examination and search of the Agency’s records, I have
been unable to find that the Applicant made applications for extension of time
to object with respect to the Periods to the Minister within 1 year and 90 days
of the dates of the reassessments.
[20]
During cross-examination,
the applicant acknowledged that in filing his July 23, 2012 application
with the Minister, and subsequently filing his August 29, 2013 application with
the Court, he did not make any reference to filing the Form with the CRA in the
weeks preceding his July 23, 2012 application made to the Minister. On a
question put to him by respondent’s counsel, the applicant said he did not
think he needed to mention that he had filed the Form and made a mistake in not
referring to that in either application. He also acknowledged that the Form merely
stated his intention to object to the GST without providing any reasons.
[21]
With respect to 2006 (the
one year and ninety-day time limit having expired on June 6, 2012), even if the
Form had been sent to the CRA according to the applicant’s estimate that he had
sent it four to six weeks before filing the July 23, 2012 application, and even
if his intent to object could be construed as an application, the Form would
have still been beyond the one year and ninety-day time limit from the date of
the March 9, 2011 reassessment.
[22]
With respect to 2007 (the
one year and ninety-day time limit having expired on July 10, 2012), for the
reasons that follow I have difficulty with the reliability of the applicant’s
evidence as it relates to sending the Form. Other than his statement during his
testimony that the Form was filed with the CRA, the applicant provided no
documentary evidence to corroborate his testimony such as providing a copy of
the Form. That alone would not have been fatal to the application.
[23]
However, that in tandem
with the following factors leads me to conclude that no Form was sent within
the one year and ninety-day time limit based on the evidence. During his
testimony he estimated, as previously noted, when he thought he sent the Form
but then went on to say he was unsure. In completing the Form, he said he made
a very brief statement expressing a mere intention to object without providing
any reasons. He also said that he had tried to hire accountants, but in his
July 23, 2012 application he stated he was unable to hire a tax lawyer. The
applicant failed to identify in the July 23, 2012 application to the Minister, and
the subsequent application to the Court, any reference to having previously
sent the Form to the CRA. I note that it appears to have taken the applicant a
considerable period of time to bring the application to this Court after the
Minister made his decision. One would have expected the applicant to have taken
a less casual approach to his affairs than he took as illustrated in the
various matters outlined.
[24]
I find that the
evidence in the affidavit of Ms. Chui to be more reliable and prefer her
evidence over the applicant’s. I therefore find that the July 23, 2012
application was the only application filed with respect to the Periods, which
was made beyond the one year and ninety-day time limit stipulated in paragraph
303(7)(a) of the Act. Therefore, no application could have been
granted by the Minister nor can be granted by this Court under section 304.
[25]
In argument, counsel for the respondent
cited and relied on factors in Ellenton v Canada, 2010 TCC 441,
[2010] TCJ No. 352 (QL) in support of the respondent’s position. He also relied
on a series of Federal Court of Appeal decisions, referenced in Ellenton,
which mandate that there must be strict compliance with the statutory time
limits for filing objections and appeals under the Act and similar
provisions in the Income Tax Act. Pereira v Canada,
2008 DTC 6709 (FCA), and Canada v Carlson, 2002 DTC
6893 (FCA) were two of the most recent decisions on point.
[26]
As such, this Court has no
jurisdiction and cannot grant the application as the applicant has missed the
time limit established in the legislation.
[27]
For these reasons, I conclude that the application to extend the
time to object made to this Court under section 304, filed on August 29, 2013,
cannot succeed as the applicant failed to comply with paragraph 303(7)(a)
of the Act when he filed his application with the Minister beyond the
one year and ninety-day time limit from the date of each reassessment for the
Periods.
[28]
My finding is as stated above.
However, I observe that it appears that the Court would have no jurisdiction,
in any event, because the applicant also failed to bring the application to the
Court (filed on August 29, 2013), within the thirty days after the Minister
made his decision (on August 24, 2012) as required by subsection 304(1) of the Act.
This is apparent from a copy of the registered letter, dated August 24, 2012,
sent to the applicant by the Minister, and is attached to the application the
applicant filed with the Court; the decision is also referenced in a letter
from the CRA, dated May 9, 2013, to the applicant that was filed as evidence at
the hearing. This point was not argued at the hearing.
[29]
The application is dismissed.
Signed at Vancouver, British Columbia, this 11th
day of March 2014.
"K. Lyons"
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