MRS Susie D Hofer v. Minister of National Revenue, [1972] CTC 2289, 72 DTC 1240

On July 2, 1971, the Registrar of the Tax Appeal Board received from the above-named appellant a notice of appeal dated at Edmonton, Alberta, on June 30, 1971, which was stated in the heading thereof to be in respect of the taxation years 1961 to 1966, although the covering letter attached referred only to the taxation years 1965 and 1966. This appeal was entered in the records of the Board as Appeal No 71-706 in respect of the taxation years 1961 to 1966.

On September 16, 1971, the Minister of National Revenue, through his counsel, filed a reply to the appellant’s notice of appeal with respect to assessments for income tax for the 1965 and 1966 taxation years and the documentation therefor must accordingly be presumed to be in order.

However, when the matter came on for hearing before the Tax Appeal Board as it was then constituted at a special sitting thereof at Ed- monton, Alberta, on September 20, 1971, Mr L P Chambers, counsel for the Minister of National Revenue, upon due notice to the appellant, moved for an order of the Board quashing the appellant’s appeal from assessments for the 1961, 1962, 1963 and 1964 taxation years on the ground that the Board has no jurisdiction to hear an appeal where no notices of assessment have ever been issued against the appellant for the taxation years indicated in the purported notice of appeal.

in support of the said motion, there was filed and read the affidavit of one Ronald Edward Crawiey, an employee of the Head Office of the Department of National Revenue, Taxation, at Ottawa, to which were annexed as exhibits copies of the notice of appeal filed with the Board and signed by the appellant and Fred A Stagg on behalf of Alta-Ed Accounting Services Ltd and of the receipt issued by the Registrar of the Tax Appeal Board, acknowledging that the appeal had been received in his office on July 2, 1971, in an envelope postmarked June 30th.

In his affidavit, the said Ronald Edward Crawley makes the following deposition:

I am informed by Mitchell Taylor, an officer of the Edmonton District Office of the Department of National Revenue, Taxation, the office from which all Notices of Assessments which were made against the Appellant were mailed, and I verily believe, that no Notices of Assessment were ever issued against the Appellant with respect to the 1961, 1962, 1963 and 1964 taxation years.

it would therefore seem apparent that Mrs Susie D Hofer has not been assessed to any income tax whatsoever for the taxation years 1961 to 1964 inclusive, and the total absence of any notices of assessment against her for those years leaves her no possible ground for appeal.

The right of a taxpayer to appeal to the Tax Appeal Board is to be found in subsection 59(1) of the Income Tax Act, RSC 1952, c 148, where it is stated that the taxpayer may appeal to the Tax Appeal Board “to have the assessment vacated or varied” where the taxpayer has already served a Notice of Objection to the said assessment under section 58 of the said Act. It is obvious that without an assessment to income tax there is no basis at all for appeal, and the Board obviously has no jurisdiction to deal with that portion of the appeal, (that is, in so far as it purports to relate to the taxation years 1961 to 1964), which would appear to have been filed in error.

Accordingly, the appeal, in so far as it purports to concern the taxation years 1961 to 1964, both inclusive, is quashed.

However, that portion of the appeal that purports to deal with assessments for the appellant’s 1965 and 1966 taxation years remains to be dealt with on the merits at the same time as the appeals of those other Hutterite Brethren whose appeals were called at this special sitting and which were adjourned to await the outcome of the appeals of the Reverend John K Wurz, the Reverend Joseph K Wipf, the Reverend Peter S Schetter, the Reverend John K Hofer and Mr Jacob J Wipf.

Appeal quashed.