Date: 19980609
Docket: APP-496-97-IT
BETWEEN:
DAVID ROTHSTEIN,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Order
P.R. Dussault, J.T.C.C.
[1] This is an application made pursuant to the Income Tax Act (the “Act”) for an order extending the time within which the applicant may serve on the Minister of National Revenue (the “Minister”) a notice of objection in respect of an assessment dated April 14, 1997, for the applicant’s 1993 taxation year.
[2] The applicant did not serve a notice of objection within the time limited by paragraph 165(1)(a) of the Act, i.e. within 90 days after the day of mailing of the notice of assessment. Rather, the applicant did serve such a notice on August 1, 1997, upon receipt of a collection letter.
[3] On October 15, 1997, the applicant filed an application for an extension of time within which to serve a notice of objection to the said assessment and on October 24, 1997, the Minister refused to grant such an extension.
[4] On December 23, 1997, the applicant filed the present application with the court.
[5] The respondent submits that the applicant has not demonstrated that, during the time otherwise limited by the Act for serving a notice of objection, he was unable to act or to instruct another to act in his name or that during that time he had a bona fide intention to object the whole within the meaning of subparagraph 166.2(5)(b)(i) of the Act.
[6] The evidence presented by the respondent convinces me that, on the balance of probabilities, the notice of assessment was duly issued and mailed on April 14, 1997.
[7] The evidence presented by the applicant convinces me, in like manner, that he did not receive the said notice of assessment and therefore that he was, obviously, unable to act or to instruct another person to act in his name within the time otherwise limited by the Act for serving a notice of objection within the meaning of clause 166.2(5)(b)(i)(A) of the Act.
[8] As I also conclude that the conditions set forth in paragraph 166.2(5)(a) and subparagraphs 166.2(5)(b)(ii) and (iii) have been satisfied, the application is granted and the notice of objection served on the Minister on August 1, 1997, is deemed to be validly served on the date of this order.
Signed at Ottawa, Canada, this 9th day of June 1998.
"P.R. Dussault"
J.T.C.C.