2002-1602(IT)APP
BETWEEN:
LAL MANSUKH,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Application heard on December 17, 2002 at Vancouver, British Columbia, by
the Honourable Judge L.M. Little
Appearances
For the Applicant: The Applicant himself
Counsel for the Respondent: Johanna Russell
ORDER
Upon application for an Order extending the time within which a Notice of Objection to the assessment of income tax for the 1992, 1993 and 1994 taxation years may be served;
And upon hearing what was alleged by the parties;
The application is dismissed in accordance with the attached Reasons for Order.
Signed at Vancouver, British Columbia, this 21st day of January 2003.
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J.T.C.C.
Date: 20030121
Docket: 2002-1602(IT)APP
BETWEEN:
LAL MANSUKH,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
Little, J.
A. FACTS:
[1] The Minister of National Revenue (the "Minister") initially assessed the Applicant with respect to the 1992, 1993 and 1994 taxation years by Notices of Assessment dated June 16, 1993, July 11, 1995 and December 23, 1996 respectively.
[2] On the 18th day of January 2000 the Minister issued Notices of Reassessment (the "Reassessments") for the Applicant's 1992, 1993 and 1994 taxation years. No further Reassessments were issued with respect to the 1992, 1993 and 1994 taxation years.
[3] On the 18th day of February 2000 Mr. Samir Fawaz ("Mr. Fawaz"), the accountant representing the Applicant, filed Notices of Objection to the Reassessments.
[4] On the 9th day of November 2000 the Minister issued a Notification of Confirmation (the "Notification"). The Notification was sent by Registered Mail to the office of Mr. Fawaz.
[5] On the 4th day of December 2000 the Notification was returned by the Post Office to the Appeals Section of the Minister's Department.
[6] On December 4, 2000, Ms. Julisa Cheng, an Appeals Officer at the Minister's Department telephoned Mr. Fawaz and indicated that a Notification in connection with the Reassessments of the Applicant's 1992, 1993 and 1994 taxation years was issued on the 9th day of November 2000. Ms. Cheng testified at the hearing that she advised Mr. Fawaz that if the Applicant wishes to file a Notice of Appeal to the Tax Court of Canada he must do so within 90 days of November 9, 2000. Ms. Cheng testified that on December 4, 2000 she mailed, by regular mail, a copy of the Notification to Mr. Fawaz.
[7] On the 3rd day of March 2002 the Applicant sent a second Notice of Objection re the Reassessments to the Minister.
[8] On the 9th day of April 2002 Foto Sukanen, an official of the Minister, wrote to the Applicant. In this letter Mr. Sukanen stated as follows:
You did not file your objection within 90 days from the mailing date of the Notices of Reassessment. Therefore, we cannot accept it under the "Income Tax Act".
Furthermore, we cannot grant you an extension of time for filing your objection. Subsection 166.1(7) of the Income Tax Act states that you must make an application for an extension within one year of the expiration of the time limit for serving a "Notice of Objection".
We regret that the Appeals Division cannot assist you further in this matter.
[9] By letter dated the 17th day of April 2002 Mr. Fawaz wrote to the Canada Customs and Revenue Agency requesting an extension of time within which the Applicant might file a Notice of Objection.
[10] By letter dated the 25th day of April 2002 H. Sellmeyer, an official of the Minister, sent Mr. Fawaz a letter similar to the letter that was sent to him by Foto Sukanen on April 9, 2002.
[11] On the 18th day of April 2002 the Applicant applied to the Court for an extension of time within which to file a Notice of Objection to the Reassessments.
B. ISSUE:
[12] The issue is whether the Applicant should be granted an extension of time within which to file a Notice of Objection to the Reassessments.
C. ANALYSIS
[13] I have carefully considered the testimony of the Applicant and the documents submitted by him and by counsel for the Respondent. I have concluded that the Applicant's request to extend the time within which to file a Notice of Objection should be dismissed for the following reasons:
1. Subsection 166.1(1) of the Act contains the rules providing for an extension of time by the Minister within which a taxpayer may file a Notice of Objection. Section 166.1 states that the section may be relied upon by the taxpayer if no Notice of Objection has previously been served. In this situation a valid Notice of Objection dated the 18th day of February 2000 was served on the Minister. The Applicant can therefore not rely upon subsection 166.1(1) of the Act.
2. If the Applicant wished to dispute the Notification that was issued by the Minister on the 9th day of November 2000 the Applicant should have filed a Notice of Appeal to the Tax Court within 90 days of November 9. A Notice of Appeal was never filed.
3. Section 167 of the Act provides that a taxpayer may obtain an extension of time within which to file a Notice of Appeal. However, subsection 167(5) of the Act provides as follows:
167(5) When order to be made. No order shall be made under this section unless
(a) the application is made within one year after the expiration of the time limited by section 169 for appealing;
[14] In this situation the time limited for filing a Notice of Appeal would expire on the 9th day of February 2001. One year from that date would be February 8, 2002. An application to extend the time to file a Notice of Objection was filed by Mr. Fawaz on the 17th day of April 2002. It therefore follows that the Applicant is too late to file a request for an extension of time within which to file a Notice of Appeal.
[15] The Applicant argued that while the Minister may have sent a Notification to Mr. Fawaz, the Applicant has never received the Notification.
[16] I have considered the Applicant's argument and I have concluded that in this situation all that is necessary to comply with the Act is for the Minister to issue the Notification by Registered Mail. The evidence is clear that the Minister met this requirement. Support for this position can be found in the decision of the Federal Court of Appeal in Bowen v. Minister of National Revenue, 91 DTC 5594. In that decision Stone J.A., for the Court, said at page 5596:
In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz., notify the respondent of the confirmation by registered mail. Nothing in that subsection or in section 169 required the notification to be "served" personally or to be received by the taxpayer. In dispatching the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information.
[17] In connection with the address used by the Minister it should be noted that Mr. Fawaz, the taxpayer's accountant, filed the original Notices of Objection for the taxpayer and the Minister sent the Notifications to Mr. Fawaz. Julisa Cheng, an officer of the Minister, also testified that she phoned Mr. Fawaz and advised him of the time requirement contained in the Act for filing a Notice of Appeal to the Notification.
[18] Under the circumstances as outlined above, the application is dismissed.
Signed at Vancouver, British Columbia, this 21st day of January 2003.
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J.T.C.C.
COURT FILE NO.: 2002-1602(IT)APP
STYLE OF CAUSE: Lal Mansukh and
Her Majesty the Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: December 17, 2002
REASONS FOR JUDGMENT BY: The Honourable Judge L.M. Little
DATE OF JUDGMENT: January 21, 2003
APPEARANCES:
For the Applicant: The Applicant himself
Counsel for the Respondent: Johanna Russell
COUNSEL OF RECORD:
For the Applicant:
Name:
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada