BETWEEN:
and
____________________________________________________________________
Motion heard on May 15, 2012 at London, Ontario
Before: The Honourable Justice Wyman W. Webb
Appearances:
____________________________________________________________________
ORDER
The Motion of the Respondent to quash the Appellant’s appeals in relation to the assessments issued for his 2007, 2008 and 2009 taxation years is granted and these appeals are quashed, without costs.
Signed at Halifax, Nova Scotia, this 12th of June, 2012.
BETWEEN:
HERVIN BROWN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
[1] The Appellant filed a Notice of Appeal in which the Appellant purported to appeal the assessments issued in relation to the Appellant’s 2007, 2008 and 2009 taxation years. At the commencement of the hearing the Respondent brought a motion to quash the Appellant’s appeals on the basis that the Appellant had not served any notice of objection in relation to any such assessment prior to commencing his appeal.
[2] The following is a list of the dates that the Appellant’s liability under the Act was assessed[1] for each of the years referred to in the Notice of Appeal:
|
Taxation Year |
Date of Assessment |
|
2007 |
July 10, 2008 |
|
2008 |
May 20, 2010 |
|
2009 |
July 19, 2010 |
[3] The Appellant submitted a notice of objection in relation to these taxation years on November 29, 2011. The time period within which a notice of objection may be served in relation to an assessment is set out in subsection 165(1) of the Act. This subsection, prior to December 15, 2010, provided as follows[2]:
165. (1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing, setting out the reasons for the objection and all relevant facts,
(a) where the assessment is in respect of the taxpayer for a taxation year and the taxpayer is an individual …, on or before the later of
(i) the day that is one year after the taxpayer's filing-due date for the year, and
(ii) the day that is 90 days after the day of mailing of the notice of assessment; and
(b) in any other case, on or before the day that is 90 days after the day of mailing of the notice of assessment.
[4] The notice of objection submitted November 29, 2011 was not served within the time period (as provided in subsection 165(1) of the Act) within which a notice of objection could have been served in relation to the assessment of the Appellant’s 2007, 2008 or 2009 taxation years. The Minister informed the Appellant of this and also informed the Appellant that he could make an application to extend the time within which a notice of objection could be served in relation to the assessment of his 2009 taxation year. On January 23, 2012 (which was after the Appellant had filed his Notice of Appeal to this Court on December 6, 2011) the Appellant wrote to the Canada Revenue Agency to request an extension of time to serve the notice of objection dated November 29, 2011. Unless the application to extend the time to serve the notice of objection is granted either by the Minister or by this Court (if the Minister does not grant the application and the Appellant makes an application to this Court within the time as provided in section 166.2 of the Act), the Appellant does not have a valid notice of objection that has been served.
[5] Subsection 169(1) of the Act, prior to December 15, 2010, provided as follows:
169. (1) Where a taxpayer has served notice of objection to an assessment under section 165, the taxpayer may appeal to the Tax Court of Canada to have the assessment vacated or varied after either
(a) the Minister has confirmed the assessment or reassessed, or
(b) 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that the Minister has vacated or confirmed the assessment or reassessed,
but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed[3] to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.
[6] In Bormann v. The Queen, 2006 DTC 6147, the Federal Court of Appeal stated as follows:
3 Section 169(1) of the Income Tax Act obliges a taxpayer to serve Notice of Objection in order to appeal an assessment. In other words, service of a Notice is a condition precedent to the institution of an appeal.
4 As mentioned, the appellant did not serve a Notice of Objection nor is there evidence that the appellant made an application to the Ministry to extend the time to file a Notice of Objection.
5 Once it is clear that no application for an extension of time was made, the law is clear that there is no jurisdiction in the Tax Court to further extend the time for equitable reasons.
Minuteman Press of Canada Company Limited v. M.N.R., 88 DTC 6278, (F.C.A.).
6 As a result, there is no basis upon which it can be said that the Tax Court Judge erred in quashing the appellant's appeals for the 1992 to 1998 taxation years.
[7] Therefore a valid notice of objection must have been served before an appeal to this Court may be instituted. Since the Appellant did not serve a valid notice of objection with respect to any assessment issued in relation to any of his 2007, 2008 or 2009 taxation years, before he filed his Notice of Appeal to this Court on December 6, 2011, he failed to satisfy the “condition precedent to the institution of an appeal” and his appeals in relation to the assessments issued for these taxation years are quashed.
Signed at Halifax, Nova Scotia, this 12th day of June, 2012.
“Wyman W. Webb”
Webb J.
COURT FILE NO.: 2011-3956(IT)I
STYLE OF CAUSE: HERVIN BROWN AND HER MAJESTY THE QUEEN
PLACE OF HEARING: London, Ontario
REASONS FOR ORDER BY: The Honourable Justice Wyman W. Webb
APPEARANCES:
|
Agent for the Appellant: |
Peter Tindall |
|
Counsel for the Respondent: |
Serena Sial |
COUNSEL OF RECORD:
Firm:
For the Respondent: Myles J. Kirvan
Deputy Attorney General of Canada
Ottawa, Canada