[1] The appellant Donald Dewey filed notices of objection to dispute income tax reassessments for 1997, 1998 and 1999. It appears that the main adjustment was to disallow the deduction of losses from a horse breeding operation. The reassessments were confirmed by the Minister. Notices of confirmation were mailed to Mr. Dewey on August 31, 2001. He had the right to appeal the reassessments to the Tax Court of Canada within 90 days, but did not do so.

[2] On October 10, 2002, the appellant filed an application with the Tax Court of Canada pursuant to section 167 of the Income Tax Act, seeking an extension of the time to file a notice of appeal. In a judgment dated February 13, 2003, a Tax Court Judge dismissed his application. Mr. Dewey now challenges that decision.

[3] Section 167 of the Income Tax Act permits the Tax Court to extend the time for commencing an appeal to the Tax Court, if a number of the conditions are met. A failure to meet any one of the conditions is fatal to the application.

[4] One of the conditions, found in paragraph 167(5)(b), is that the applicant demonstrate that, within the 90 day period permitted for appeals, either he was unable to act or to instruct another to act his name, or he had a bona fide intention to appeal.

[5] The Tax Court Judge found that, during the 90 day statutory appeal period, Mr. Dewey had not formed the intention to appeal and that he was able to appeal or instruct someone to do so on his behalf. Those are findings of fact that must stand in the absence of palpable and overriding error. There is no such error here. On the contrary, the decision of the Tax Court Judge was supported by the evidence before him. We do not consider it necessary to discuss the other statutory conditions in section 167.

[6] It follows that the Tax Court Judge did not err in dismissing Mr. Dewey's application for an extension of time for commencing an appeal to the Tax Court. This appeal must therefore be dismissed. In the circumstances, no costs will be awarded.

(s) "K. Sharlow"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-158-03

STYLE OF CAUSE: Donald Dewey and Her Majesty The Queen

PLACE OF HEARING: Saskatoon, Saskatchewan

DATE OF HEARING: 14 January 2003

REASONS FOR JUDGMENT OF THE COURT: Strayer J.A.

Rothstein J.A.

Sharlow J.A.

DELIVERED FROM THE BENCH BY: Sharlow J.A.

APPEARANCES:

Donald Dewey

ON HIS OWN BEHALF

Anne Jinnouchi

FOR THE RESPONDENT

SOLICITORS OF RECORD:

Donald Dewey

Martensville, Saskatchewan

ON HIS OWN BEHALF

Department of Justice

Saskatoon, Saskatchewan

FOR THE RESPONDENT

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Dewey v. Canada, 2004 FCA 82

Citations2004 FCA 82

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2004 FCA 82