Urbano Ramos v. Minister of National Revenue, [1983] CTC 2744, 83 DTC 643

Taylor, TCJ:—This is an application for an extension of time within which to file a notice of objection for the taxation years 1978, 1979 and 1980. The application, forwarded by Mr John W Readings, CA, is dated April 7, 1983 and reads as follows:

On the date of the notice of reassessment, July 26, 1982, Mr Ramos was not in Canada. Mr Ramos returned to Canada at the end of October 1982 and received the notice of reassessment in November of 1982 and brought the notice to my office in February 1983. Due to the fact that Mr Ramos received the notice of reassessment after 90 days, we feel that a time extension would be in order.

In contrast, the Minister asserted:

1. The Notices of Reassessment with respect to the Applicant’s 1978, 1979 and 1980 taxation years were mailed to the Applicant at the most recent address provided by him of RR #3, Glencoe, Ontario, on July 26, 1982.

2. The Notices of Reassessment were returned to the Department of National Revenue. The Applicant had left the country.

3. The Applicant returned to Canada in November and on November 5, 1982 the Notices of Reassessment were hand delivered to him.

4. The 90th day following the date of mailing of the Notices of Reassessment was Sunday, October 24, 1982, making Monday, October 25, 1982 the last day for filing Notices of Objection.

5. The 90th day following the date of Notices of Reassessment were hand delivered to the Applicant was Thursday, February 3, 1983.

6. The Applicant did not file a Notice of Objection until the date of the Application herein, April 14, 1983, a time lapse of more than eight months from the date of mailing of the Notices of Reassessment and a time lapse of more than five months from the date the Notices of Reassessment were hand delivered.

8. The Respondent submits that the Applicant has not shown that but for the circumstances of his case a Notice of Objection would have been made within the time otherwise limited by the Act for so doing, so that by virtue of subparagraph 167(5)(c)(i) of the Act, an order to extend the time for filing a Notice of Objection cannot be made.

Reference is made to the cases of Milan Hrovat et al v MNR, [1983] CTC 2662; 83 DTC 590, and it is pointed out that the issue raised by the Minister in this matter is different. It can also be distinguished from J W Elliott v MNR, [1978] CTC 2919; 78 DTC 1643. The question raised here is related to the taxpayer’s representative under subsection 167(1) and subparagraph 167(5)(c)(i) of the Income Tax Act, SC 1970-71-72, c 63, as amended. Both Mr Readings and Mr Ramos testified at the hearing. Mr Ramos noted that during the period from about October 1981, he was under audit by Revenue Canada, an audit which ultimately resulted in certain criminal proceedings against him which were dismissed. Although he had expected some reassessments from Revenue Canada (to the degree he had been informed that there were going to be some changes in his tax liability), he had not received these before leaving the country for a trip in the summer of 1982. When he returned in October 1982, he still did not have the reassessments but, in checking with Revenue Canada, he requested them and received them — that is the reference by the Minister to “hand delivered to him”.

Taking these reassessments to his lawyer, Mr Ramos was informed that he should get the criminal matter cleared up before worrying about the notices of assessment He did not raise the assessment matter with his accountant, Mr Readings, until about the end of February 1983, now more than six months since they were dated, and more than three months since they were “hand delivered”. Mr Readings advised that he file the notice of objection, but contends that he (Mr Readings) had difficulty doing so since the books and records were in the possession of Revenue Canada. While that reason does not impress me under the circumstances, again I point out it is not the matter at issue according to the Minister. That issue is only whether Mr Ramos’ explanation for the non-filing within the original 90-day period is adequate.

The Court does question the wisdom of Mr Ramos in failing to leave an appropriate alternative mailing address (ie his lawyer’s or his accountant’s) during his prolonged absence in 1982. Nevertheless, the fact is that during this period (July 26 to October 26, 1982 approximately), he had no specific knowledge of the assessments at issue, according to the testimony given. His reason that he did not file the notice of objection because of that must be accepted, even taking into account that his subsequent conduct in not filing them during a further three-month period (after November 5, 1982) leaves some question about his intention and dedication to the problem.

The application is granted.

Application allowed.