Gaudreau v. R., [1998] 1 CTC 2769

Lamarre Proulx T.C.J.:

This is an appeal under the informal procedure with regard to the appellant’s 1988 taxation year.

The issue is whether the notice of the original assessment was mailed on July 10, 1992, as stated by the Minister of National Revenue (“the Minister”), or on September 11, 1992, as alleged by the appellant.

The appellant filed as Exhibit A-l the notice of the original assessment dated July 12, 1989. The address of the appellant which appears on that notice is 3 rue Marie-Rollet, Lévis, Quebec. According to his testimony, the appellant had no longer been living at that address since late 1984, the year in which he allegedly separated from his wife. The income tax return filed by the appellant for 1988 (Exhibit I-1) gives as his address the same address on Rue Marie-Rollet.

Exhibit A-2 is the notice of reassessment at issue in the instant case. The date of mailing indicated on it is July 10, 1992. The address is that on Rue Marie-Rollet. Exhibit A-3 is the envelope containing the notice of reassessment (Exhibit A-3) received by the appellant. The envelope is postmarked September 11, 1992. It is a window envelope. Over the window a strip white paper has been affixed on which is typed the address of the appellant’s law firm: 801 chemin St-Louis, Suite 160, Québec, Quebec.

Exhibit A-5 is a letter from the appellant to Revenue Canada, Taxation dated January 20, 1992. The appellant’s signature is followed by his office address. To this letter was attached a payment form issued by Revenue Canada and bearing the Rue Marie-Rollet address. It should be noted that in the appellant’s letter there is no mention that this address should be changed to the office address. Exhibit A-4 is a notice of reassessment of the appellant dated April 19, 1993. The appellant’s address is therein given as being his aforementioned office address.

Yves Côté, an appeals officer with Revenue Canada, testified at the request of counsel for the respondent. Exhibit I-2 is a letter sent to the appellant on January 28, 1992 at the Rue Marie-Rollet address. The letter contained the proposed reassessment and was received by the appellant. Exhibit 1-4 is an internal Revenue Canada document containing the final draft of the reassessment. This is the document which precedes a notice of reassessment sent to a taxpayer. The internal document contains everything that the notice of reassessment should contain and it must receive the approval of the various audit groups. Here, there appears in this document, as in the notice of reassessment, the following note: [TRANSLATION] “We have made an adjustment following our telephone conversation on April 9, 1992”. Again, in the course of that telephone conversation nothing remotely resembling a formal notice of a change of address seems to have been given.

Attached to the internal document was a control slip used for reassessments which have priority in view of the risk of expiry of the normal reassessment period. The prescription date mentioned is July 12, 1992, upon which date the parties are in agreement. It is stated on the control slip that the notice of assessment arrived in and left the mail room on the same day, namely July 10, 1992, and that the check number was 3737. The same witness (the appeals officer) stated that the first notice was sent by registered mail but for some reason the original envelope was not in the file nor was the registered mail receipt. The second notice was sent by ordinary mail, which is sometimes done, the witness said, in order to facilitate receipt as the recipient does not have to sign for it.

Analysis

Subsections 244(14) and (15) of the Income Tax Act (“the Act”) read as follows:

(14) Mailing date. For the purposes of this Act, the day of mailing of any notice or notification described in subsection 149.1(6.3), 152(4), or 166.1(5) or of any notice of assessment shall be presumed to be the date of that notice or notification.

(15) Date when assessment made. Where any notice of an assessment has been sent by the Minister as required by this Act, the assessment shall be deemed to have been made on the day of mailing of the notice of assessment.

Counsel for the appellant referred to this Court’s decision in Hughes v. Minister of National Revenue(1987), 87 D.T.C. 635 (T.C.C.), as a basis for arguing that the presumption in s. 244(14) of the Act is not an irrebuttable presumption:

Is there evidence in the present matter to indicate the Notice of Assessment was mailed on a later day than that appearing on the Notice?

The Court is satisfied that there is sufficient evidence to rebut the presumption created by subsection 244(14) concerning the mailing of the Notice of Assessment.

It is possible that this is not an irrebuttable presumption and that the way to rebut it is for the appellant to produce the original envelope or to show that the Minister did not send the notice to the correct address in spite of the fact that a formal change of address notice was duly sent.

The envelope filed as Exhibit A-3 is obviously not the above-mentioned original envelope. The envelopes used are window envelopes through which appears the taxpayer’s address entered on the notice. In the instant case, the envelope in which the notice was received was a window envelope, but the window was not used and it was sent by regular mail. So far as the absence of the original envelope is concerned, as I said at the hearing, when the Department of Revenue has created a special control slip for assessments that may be subject to prescription it is surprising that the same Care is not taken in preserving the evidence.

As regards the taxpayer’s duty to inform the Minister of his change of address, counsel for the respondent referred to the Federal Court of Appeal judgment in Bowen v. Minister of National Revenue (1991), [1992] 1 F.C. 311 (Fed. C.A.), in which Stone J.A. said at page 314:

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 administrative standpoint. Parliament has not required it; it has required merely that the notification be dispatched by registered mail.

It is apparent that the reason why the respondent did not receive the notification was not because the Minister failed to do all that was required of him but because the respondent did not keep his mailing address current....

The instant case concerns a notice of reassessment under s. 152(4) of the Act. Under subsections 244(14) and (15) of the Act the reassessment is deemed to have been made on the day of mailing of the notice of assessment and that day of mailing is presumed to be the date of that notice.

As we saw earlier, the evidence shows that the envelope filed by the appellant was not the original envelope and so the postmark on it has no evidentiary value. Further, the postal address initially used by the Minister was that given by the appellant in his tax return for 1988, as in 1992 the appellant had not advised the Minister of his change of address. I cannot conclude that the appellant asked the Minister to register a change of address by means of his letter of January 20, 1992 (Exhibit A-5), the content of which is described above, since the appellant made no such request in that letter.

In these circumstances, I consider that the presumptions laid down in subsections 244(14) and (15) of the Act have not been rebutted and that the reassessment was made on the day of mailing of the notice of reassessment, which is the date appearing on that notice, namely July 10, 1992.

The appeal is accordingly dismissed.

Appeal dismissed.