David P Hofer, Jacob R Hofer, John a Hofer, MRS Katie Hofer, Paul K Hofer, Paul S Hofer, John D Stahl, Peter Stahl, John S Wurz and Josh M. Wurz v. Minister of National Revenue, [1972] CTC 2291, 72 DTC 1245

On September 7, 1971, the Registrar of the Tax Appeal Board received from the above-named appellants Notices of Appeal dated at Edmonton on August 25, 1971, in respect of assessments to income tax for the taxation years 1963, 1964, 1965 and 1966, which notices were entered in the records of the Board.

When the matter came on for hearing before the Tax Appeal Board as it was then constituted at a special sitting thereof at Edmonton, Alberta, on September 20, 1971, Mr L P Chambers, counsel for the Minister of National Revenue, upon due notice to the appellants, moved for orders of the Board quashing the appellants’ appeals from the said assessments to income tax on the ground that the Board had no jurisdiction to hear appeals that were not instituted within the time prescribed therefor by the provisions of the Income Tax Act.

In support of the said motions there were filed and read the affidavits of one Ronald Edward Crawley, an employee of the Head Office of the Department of National Revenue, Taxation, at Ottawa, to which were annexed, in the case of each of the above appellants and marked as Exhibit “A”, copies of their respective notices of assessment for the taxation years 1963 to 1966, both inclusive, all of which had been dated and mailed to them on February 26, 1971.

Also attached to the affidavits, and marked as Exhibits “B”, were copies of Notices of Objection dated April 16, 1971 which had been filed by the appellants in respect of the said assessments for the years 1963 to 1966.

A further exhibit, marked Exhibit “C’’, was attached to each affidavit, being a copy of the notification issued by the Minister of National Revenue under the provisions of section 58 of the Income Tax Act for the 1963 to 1966 taxation years and bearing date of May 27, 1971, wherein the Minister confirmed the assessments above referred to as having been made in accordance with the provisions of the said Act. These notifications were stated in the said affidavits to have been mailed to the appellants by registered mail on the said 27th day of May, 1971.

A final exhibit (Exhibit “D”) attached to the said affidavits consisted of a copy of the relevant Notice of Appeal described above and the formal acknowledgment of its receipt which had been issued by the Registrar of the Tax Appeal Board, the date of receipt in each case being shown as September 7, 1971.

In each affidavit in respect of these appeals for the years 1963 to 1966, the said Ronald Edward Crawley made the following deposition:

On the 13th day of September, 1971, I attended at the offices of the Tax Appeal Board, 116 Lisgar Street, Ottawa, Ontario, and I searched the file pertaining to the within appeal. I was informed by Mrs J Sproule, Clerk in the offices of the Registrar of the Tax Appeal Board, that an envelope which I found on the file pertaining to this appeal was the envelope in which the Notice of Appeal, Exhibit “D”, had been mailed to the Tax Appeal Board. The postmark on the envelope indicated that mailing had taken place at Edmonton on September 3, 1971.

The right of a taxpayer to appeal from an assessment is to be found in subsection 59(1) of the Income Tax Act as applicable to the years in question herein, which reads as follows:

59. (1) Where a taxpayer has served a notice of objection to an assessment under section 58, he may appeal to the Tax Appeal Board constituted by Division I to have the assessment vacated or varied after either

(a) the Minister has confirmed the assessment or re-assessed, or

(b) 180 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 re-assessed;

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 58 that the Minister has confirmed the assessment or re-assessed.

(The italics have been added.)

From the material before the Board, it is clear that, in respect of the assessments for the 1963 to 1966 taxation years, an interval of 99 days had elapsed between the date of mailing of the Minister’s notifications under section 58 and the date of mailing of the purported notices of appeal to the Tax Appeal Board, and that the purported notices of appeal presented to the Board for consideration had been mailed to, and received by, the Registrar of the Tax Appeal Board well beyond the 90-day period reserved by statute for instituting an appeal.

The appellants having failed to comply with the statutory provisions of the Income Tax Act, RSC 1952, c 148 (and amendments thereto), with respect to the institution of an appeal, the Board was and is without jurisdiction to hear the appeals on their merits. The purported ‘notices of appeal herein must therefore be quashed.

Appeals quashed.