Martin John McDonald v. Minister of National Revenue, [1992] 1 CTC 2167, 92 DTC 1097

Sobier, T.C.C.J.:—The applicant applies for an order extending the time within which he may serve on the Minister of National Revenue (the "Minister") a notice of objection with respect to his 1985 taxation year.

The respondent reassessed the applicant for his 1985 taxation year and mailed a notice of reassessment to the applicant on September 16, 1988.

The applicant served on the respondent a notice of objection within the time prescribed by subsection 165(1) of the Income Tax Act, R.S.C. 1952, c. 148 (am. S.C. 1970-71-72, c. 63) (the "Act").

The respondent confirmed the reassessment and a notice of confirmation was dated and mailed by registered mail to the applicant on May 16, 1990. The notice of confirmation was returned to the respondent as" unclaimed" and was remailed to the applicant by ordinary mail on June 5, 1990.

It was the applicants evidence that he was in British Columbia at the time the notice of confirmation was originally mailed and that he had previously instructed Revenue Canada to send copies of all correspondence to his accountant. Apparently this was not done. The address to which the notice of confirmation was mailed to the applicant by the respondent was the same that had been previously used.

The applicant stated that when he returned to Alberta, his accountant told him he had heard from some source that there had been a reassessment for the 1985 taxation year, when in fact there was a confirmation by the respondent of the previous reassessment.

Believing that there was a reassessment, the applicant mailed a notice of objection to the respondent on August 23 or August 24, 1990, rather than file a notice of appeal with this Court.

By letter dated November 15, 1990, Mr. Taylor of the Appeals Division of Revenue Canada wrote to the applicant concerning not only the 1985 taxation year but others as well. The letter pointed out that the notice of confirmation of the 1985 notice of assessment [sic] was sent on May 16, 1990, and that the time limit for filing a notice of appeal to this Court had expired and that the applicant should request an extension of this time limit.

It was not until August 23, 1991 that the applicant filed an application for extension of time.

There are two questions which must be asked. The first, was the filing of the application for extension of time made within one year and 90 days from he date the applicant could have filed the notices of appeal? If May 16, 1990, is the date of mailing the notice of confirmation, then as the applicant admits, he is out of time and the Court has no jurisdiction to grant the relief he seeks.

If, on the other hand, the time for filing an application for extension of time did not pass, should the Court grant the extension under the circumstances?

The applicant is a practising lawyer and therefore is not unfamiliar with the objection and appeals procedures of the Act. He knew in November 1990 that he needed to apply for an extension with respect to his 1985 taxation year. However, he did not make his application until August 23, 1991, and this application was not received by this Court until August 29, 1991.

In the recent decision of the Federal Court of Appeal in Bowen v. M.N.R., [1991] 2 C.T.C. 266, 91 D.T.C. 5594, the issue was whether the learned judge of the Tax Court of Canada was correct in concluding that it was incumbent on the respondent to demonstrate that clear notification of the commencement and duration of the critical—and perhaps fateful—time period has been received by the taxpayer.

Mr. Justice Stone says at page 268 (D.T.C. 5595-96):

With respect, we are unable to agree with that conclusion. In our view, it disregards the plain meaning of subsection 165(3) and section 169 of the Act, which read:

165.(3) Upon receipt of a notice of objection under this section, the Minister shall

(a) with all due dispatch reconsider the assessment and vacate, confirm or vary the assessment or reassess, or

(b) where the taxpayer indicates in the notice of objection that he wishes to appeal immediately either to the Tax Court of Canada or to the Federal Court and that he waives reconsideration of the assessment and the Minister consents, file a copy of the notice of objection with the Registrar of the Tax Court or in the Registry of the Federal Court, as the case may be,

and he shall thereupon notify the taxpayer of his action by registered mail.

169. Where a taxpayer has served notice of objection to an assessment under section 165, he may appeal to the Tax Court of Canada to have the assessment vacated or varied after either

(a) The Minister has confirmed the assessment or reassessed, or

(b) 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that he has vacated or confirmed the assessment or reassessed;

but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.

In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz., notify the respondent of the confirmation by registered mail. Nothing in that subsection or in section 169 required the notification to be "served" personally or to be received by the taxpayer. In dispatching the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information. Moreover, a requirement for the receipt of the notification would be difficult if not totally unworkable from an administration standpoint. Parliament has not required it; it had required merely that the notification be dispatched by registered mail.

Even though the applicant may have advised the respondent to copy his accountant with correspondence, the fact that the respondent mailed the notification to the official" address for service is sufficient. Based on Bowen, supra, the respondent did what he was required to do by subsection 165(3). Accordingly, the time for filing a notice of appeal expired prior to the time the applicant made an application to extend the time for filing the notice of appeal.

Having come to this conclusion, I need not deal with the second question.

Accordingly, this Court has no jurisdiction to grant the applicant the relief he seeks.

The application is therefore dismissed.

Application dismissed.