Andrew a Wurz v. Minister of National Revenue, [1972] CTC 2299, 72 DTC 1238

On September 10, 1971, the Registrar of the Tax Appeal Board received from the above-named appellant a Notice of Appeal dated August 17, 1971, in respect of assessments to income tax for the taxation years 1961 and 1962 in which the amount of tax payable (both federal and provincial) was stated to be “nil”.

This appeal was entered in the records of the Board as Appeal No. 71-1089 and 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, counsel for the respondent, Mr L P Chambers, upon due notice to the appellant, moved for an order of the Board quashing the appellant’s appeal from assessments to income tax for the 1961 and 1962 taxation years on the ground that the Board had no jurisdiction to hear an appeal from a notification by the Minister of National Revenue that no tax was payable by the taxpayer with respect to the said taxation years.

In support of the said motion, there was filed and read the affidavit of one Ronald Edward Crawley, an employee of the Head Office of the Department of National Revenue, Taxation, at Ottawa, to which were annexed as Exhibit “A” copies of the said notices of assessment numbered 3449169 and 3449170 for 1961 and 1962 respectively, both of which were issued on February 26, 1971, and both indicating that the amounts of federal and provincial tax payable were nil.

Also attached to the affidavit and marked as Exhibit “B” were copies of purported Notices of Objection to these assessments, which objections were dated March 10, 1971, and a photocopy (Exhibit ‘‘C’’) of the Minister’s notification of May 19, 1971, under section 58 of the Income Tax Act confirming that no tax was payable for the 1961 and 1962 taxation years. This notification was attested to have been mailed on the date of issue, namely, May 19, 1971.

The records of the Board disclose that the envelope in which the purported Notice of Appeal was received by the Registrar was postmarked at Edmonton, Alberta, on September 8, 1971, or 112 days after the mailing of the Minister’s notification under section 58 of the Act, which is a period considerably in excess of the 90 days provided by section 59 of the said Act for the institution of an appeal.

It is also well established that no appeal lies from a notification by the Minister that no tax is payable by a taxpayer: see Newfoundland Minerals Limited v MNR, [1969] CTC 639; 69 DTC 5432; Lazis v MNR, 70 DTC 1400; [1970] Tax ABC 605; and Falconbridge Nickel Mines Limited v MNR, [1971] CTC 789 at pp 795/6, 71 DTC 5461 at p 5465.

There being no amounts in issue and therefore no grounds for appeal in respect of the 1961 and 1962 taxation years and the appellant, in any case, having failed to comply with the statutory provisions of subsection 59(1) of the Income fax Act with respect to the institution of an appeal, the Board is without jurisdiction to hear the appeal on its merits.

All things considered, the purported notice of appeal in respect of nil assessments to income tax for 1961 and 1962 must be quashed on both counts.

Appeal quashed.