Application heard on January 27,
2017 at Toronto, Ontario
Before:
The Honourable Justice B. Russell
Appearances:
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Agent for the Applicant:
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Gunaratnam Vaithilingam
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Counsel for the Respondent:
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Eric Myles
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JUDGMENT
WHEREAS the Applicant had filed an application for an extension of
time to file a Notice of Objection under the Excise Tax Act (Canada) for
the reporting period October 23, 2009 to September 30, 2010;
AND WHEREAS the application was filed beyond the applicable
legislated time period and this Court does not have jurisdiction to extend that
legislated time period for the Applicant to file a Notice of Objection for the
said reporting period;
THEREFORE
this application for an extension of time to file a Notice of Objection for the
Applicant’s reporting period October 23, 2009 to September 30, 2010 is
dismissed, without costs.
Signed at Ottawa, Canada,
this 13th day of July 2017.
“B. Russell”
Citation:
2017TCC138
Date: 20170713
Docket: 2016-5073(GST)APP
BETWEEN:
KAMWAR
INC.,
Applicant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR JUDGMENT
Russell J.
[1]
This matter is an application filed November 28,
2016 by the corporate entity Kamwar Inc. for an order for an extension of time,
pursuant to section 304 of the Excise Tax Act (Canada) (“Act”),
to file with the Minister of National Revenue (“Minister”) a notice of
objection. The notice of objection would be in respect of an assessment under
the Act raised March 8, 2012 for the reporting period October 23, 2009
to September 30, 2010. That assessment substantially reduced an input tax
credit (“ITC”) that Kamwar had claimed for that period. The said assessment was
evidenced by a Notice of (Re)assessment mailed March 8, 2012 to the
address for Kamwar that had last previously been provided to the Minister by or
on behalf of Kamwar.
[2]
The principal of Kamwar, Mr. Gunaratnam
Vaithilingam, testified in support of this application. I accept his evidence
as having been entirely credible. He testified that due to family issues he was
living away from his home, the address of which was also Kamwar’s official
address, at the time the said Notice of (Re)assessment would have been sent. He
said that for this reason likely, he never saw the said Notice. He did not try
to suggest or argue that the Notice had never been sent. In cross-examination
he suggested it may have gone astray in the mail. He stated he only became
aware of the assessment in September or October of 2016 when Canada
Revenue Agency (“CRA”) Collections contacted him.
[3]
He stated he is currently working as a
telemarketer for $12 an hour and suffers from depression. His spouse was
suffering from cancer. He seeks an opportunity to prove the full ITC that had
been reduced by the Minister. He requested the Court’s indulgence in granting
an extension of time so as to provide the opportunity to file a notice of
objection.
[4]
The Respondent called no evidence, having filed
with the Court, with copy to the Applicant, the affidavit of CRA officer Danny
Docuyanan sworn January 20, 2017. The affidavit set out the particulars as
to the mailing of the said Notice of (Re)assessment on March 8, 2012 and as to Mr.
Docuyanan’s search of pertinent CRA records to ascertain whether any notice of
objection relevant to the said assessment, or any earlier application to extend
time for such filing, had been filed. His finding was that no such document or
documents had been previously filed, prior to the October 20, 2016 attempted filing
by the Applicant of a notice of objection. The Minister had responded to that
by letter dated November 18, 2016 stating that that purported notice of
objection could not be accepted as it had been presented for filing after the
last allowable day, being June 6, 2013.
[5]
As well, there had not been any reassessment of
the 2010 reporting period.
[6]
In argument the Respondent cited several
authorities all to the effect that subsection 304(5) of the Act made
clear that a section 304 application for extension could not be granted if an
application to the Minister pursuant to section 303 for the extension had not
been made within a year after the expiry of the 90 day period provided by
subsection 301(1.1) for filing a notice of objection.
[7]
The cited authorities included Chomatas v R,
2013 TCC 319; Désir c R, 2015 TCC 126; Hughes v R, 2015 TCC 59.
[8]
The wording of subsection 304(5) is precise and
unambiguous. It reads in pertinent part:
No application
shall be granted under this section unless
a)
the application was made under subsection 303(1)
within one year after the expiration of the time otherwise limited by this Part
for objecting [being per subsection 301(1.1) 90 days after the day the
assessment notice was mailed]…
[9]
The circumstances of the Applicant’s principal evoke
compassion. However, the precise and unambiguous wording of subsection 304(5)
does not admit of any opportunity for judicial exercise of discretion. Unless a
subsection 303(1) application was made prior to June 6, 2013, Parliament has
denied the Court, by its very specific wording of the introductory words of
subsection 304(5), any ability to do other than deny this application. And, the
uncontroverted evidence here is that the subsection 303(1) application was only
filed October 20, 2016, being well more than three years too late.
[10]
It is with regret that I accordingly am obliged
to dismiss this section 304 application for extension of time to file the
desired notice of objection. This application is dismissed, without costs.
Signed at Ottawa,
Canada, this 13th day of July 2017.
“B. Russell”
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