Beaubier T.C.J. (orally) .
THE REGISTRAR: APP-2-98-IT, between Steve Bata and Her Majesty The Queen. Mr. Bata present and counsel for the respondent is Ms. Johnston.
THE COURT: This application for an Order to extend the time in which the appellant may appeal, a confirmation of assessment was heard at Regina, Saskatchewan, on August 27, 1998. The appellant and his lay accountant, Herb Ottenbreit, testified.
The pertinent dates are as follows:
(1) Notice of Objection, June 24, 1996.
(2) Notice of Confirmation, November 12, 1996.
(3) 90-day Expiry, February 11, 1997.
(4) Filing of this application, January 9, 1998.
The restrictions on such an Order are set out in subsection 167(5) of the Income Tax Act. It reads:
(5) When order to be made. No order shall be made under this section unless
(1) the application is made within one year after the expiration of the time limited by Section 169 for appealing; and
(2) the taxpayer demonstrates that
(i) within the time otherwise limited by Section 169 for appealing the taxpayer
(1) was unable to act or to instruct another to act in the taxpayer's name, or
(2) had a bona fide intention to appeal.
(ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application.
(iii) the application was made as soon as circumstances permitted, and
(iv) there are reasonable grounds for the appeal.
Subparagraphs (b) (ii) and (iv) were satisfied by the evidence without much dissension since the appellant’s success in an appeal will be determined by oral evidence. It will be a question of credibility.
5(b) (i) (A) raises the question as to whether the appellant was unable to act or instruct another to act. He was not sick. He was always in Regina. He had been told by Mr. Ottenbreit at about the expiry of the 90 days in which to appeal that he needed a lawyer for the appeal step and that, “You may have to do this within some period of time.” The appellant had read the instructions to appeal that came with the Notice of Confirmation. The Court is satisfied that he understood them.
The appellant is a Hungarian immigrant with a heavy accent. From his testimony, it was also clear that he can develop certain fixed ideas. He admitted that he didn’t want to pay a lawyer for an appeal. He tried from time-to-time to get Mr. Berta to sign acknowledgments, Exhibits A-1 and A-2, that he had been paid so that the appellant could make the disputed expense deduction in each of the two years. He testified that he found that he was out of time when Revenue Canada garnished him. Then he went to a lawyer. This application followed.
The appellant testified that he thought that he could get Mr. Berta to sign the acknowledgments so that the cost of a lawyer in an appeal wouldn’t be necessary. On the evidence, the appellant has not convinced the Court that the appellant always had a bona fide intention to appeal pursuant to (5) (b)
(1) (B). Rather, he had an intention to settle the matter so as to avoid the cost of an appeal.
The appellant testified that he always wanted to appeal, but his actions did not confirm his testimony. The appellant did not suffer from any circumstances which prevented him from making this application at any time before he did. He was not away from Canada or Regina. He did not suffer from a major illness or disability. His job at the Hungarian Club was for 365 days per year but; even so, he operated a building cleaning business on the side. On the evidence, he tried to get Mr. Berta to sign Exhibits A-l and A-2, so that he could make a deal with Revenue Canada.
The Court also finds that the appellant did not make this application as soon as circumstances permitted within (5) (b) (iii). That date was when Mr. Ottenbreit told him to see a lawyer and appeal. Rather, the appellant waited until he was garnished for the income tax assessed.
For these reasons, the application is dismissed.
Application dismissed.
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