The Assistant Chairman (orally: May 14, 1975):
1 The motion submitted to the Tax Review Board by respondent, to be excused from failing to plead in Mariette Delage-Moore v. MNR, is allowed.
2 In view of the various interpretations of Rule 7 of the Rules of Practice and Procedure in Appeals to the Tax Review Board, which this motion concerns, the Board takes this opportunity to clarify it through an order of the Board.
3 Rule 7 of the Rules of Practice and Procedure in Appeals to the Tax Review Board reads as follows:
7. If no Reply to a Notice of Appeal has been filed within sixty days from the date on which the Registrar of the Board has transmitted the Notice of Appeal to the Minister of National Revenue, the appellant may make an application to the Registrar to have the appeal entered on the list of appeals to be called for hearing at the next sitting of the Board in the appellant's district and, upon the making of such application, no Reply shall thereafter be filed without leave of the Board.
4 It should be noted that appellant may make an application to the Registrar to have his appeal entered on the list of appeals only in cases where respondent has filed no reply to a notice of appeal within the 60-day time limit specified in the Tax Review Board Rules.
5 However, a reply to a notice of appeal by respondent will be accepted by the Board and considered valid if it is filed after the 60-day period, but before appellant makes his application to have his appeal entered on the list of appeals to be heard.
6 If appellant makes an application to have his appeal entered on the list after the specified time period has elapsed and before respondent files his reply to the notice of appeal, respondent will be informed of this by the Board, which will not accept a reply filed subsequently. Respondent must then proceed by a motion duly served on appellant in order to file his reply after expiration of the time period specified in the Tax Review Board Rules. This motion will be heard by the Chairman sitting at the hearing of the list in which appellant has entered his appeal. There will be no hearing of the appeal on its merits until the validity of the motion has been determined. If the motion for an extension of time is dismissed, the appeal will be heard in accordance with the provisions of Rule 8 of the Tax Review Board Rules.
7 It may be useful to mention that Rule 8 must not be interpreted as providing for an ex parte hearing, or that the appeal will be automatically allowed. As stated in Rule 8, the Board may dispose of the appeal on the basis that the allegations of fact contained in the notice of appeal are true, but the procedure of the Board at the hearing of the appeal will not be otherwise altered.
8 In the case of the motion now before the Board, even though the reply to the notice of appeal was filed after expiration of the 60-day time period specified in the Tax Review Board Rules, appellant at no time made an application to have her appeal entered on the list of appeals to be heard at this sitting of the Board in accordance with Rule 7. In the Board's opinion, the reply to the notice of appeal so filed by respondent is valid, the two parties in question are lawfully engaged in the appeal of Mariette Delage-Moore v. MNR, and the Board may now hear this appeal on its merits.
9 The motion is therefore allowed.
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