Date: 20020711
Docket: 2001-3953-IT-APP
BETWEEN:
MARY ANGELA SCHIAVONE,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Agent for the Applicant: Paul P. Tiefenbach
Counsel for the Respondent: James Rhodes
Reasonsfor Order
(Delivered orally from the Bench on February 18, 2002 at Toronto, Ontario)
McArthur J.
[1] This is an application by Mary Angela Schiavone for an Order extending the time to institute appeals from assessments of tax for her 1990, 1991, 1992 and 1993 taxation years. The Minister of National Revenue sets out the facts in the Reply for an Extension of Time as follows:
1. The Minister of National Revenue (the Minister) assessed the Applicant for the 1990 taxation year by notice dated August 23, 1991;
2. The Applicant objected to the assessment by Notice of Objection dated September 16, 1991 and received by the Sudbury Taxation Centre of the Department of National Revenue (the Department) on October 17, 1991;
3. The Minister issued a reassessment by notification dated and mailed to the Applicant on September 25, 1995 pursuant to the Notice of Objection for this taxation year;
4. The Applicant did not file a Notice of Appeal with the Tax Court of Canada within the time limited by subsection 169(1) of the Income Tax Act (the Act);
5. The Minister also assessed the Applicant for the 1991 and 1992 taxation years by respective Notices dated December 20, 1993;
6. The Applicant objected to the assessments for the 1991 and 1992 taxation years by respective Notices of Objection dated February 1994 and received by the Head Office of the Department on March 16, 1994;
7. The Minister confirmed the said assessments by Notification of Confirmation dated and mailed to the Applicant on September 25, 1995 pursuant to the Notices of Objection for those taxation years;
8. The Applicant did not file Notices of Appeal with the Tax Court of Canada within the time limited by subsection 169(1) of the Act;
9. The Minister also notified the Applicant that no tax is payable for the 1993 taxation year by notification dated June 13, 1994;
10. The Application for an extension of time within which to file Notices of Appeal for the 1990, 1991, 1992 and 1993 taxation years with the Tax Court of Canada was filed with this Honourable Court on November 1, 2002.
[2] In the answer to the Minister, the Applicant quotes Rules 7, 9 and 12 of the Tax Court of Canada Rules (General Procedure). The Applicant further relies on the reasoning in the appeal of Meer v. The Queen, 2001 DTC 648, wherein the Applicant was within the time limits set out in subsection 167(5) of the Income Tax Act. She also referred to Carlson v. The Queen, 2001 DTC 2556 (T.C.C.), which application was reversed by the Federal Court of Appeal. See [2002] F.C.J. No. 573.
[3] The position of the Respondent is that with respect to the taxation years 1990, 1991 and 1992, the application by the Applicant was not made within one year after the expiration of the time otherwise limited by the Act for instituting appeals. The date limited by the Act for the Applicant to institute appeals was December 27, 1995. In addition, with respect to the taxation year 1993, as the Applicant is seeking to appeal in respect of a notification that no tax is payable, an Order to extend the time to institute an appeal for this taxation year should not be made.
[4] Subsection 167(5) of the Act limits the power to extend time to file an appeal to "one year after the expiration of the time otherwise limited by this Act for objecting ...". I find as a fact that the time expired on December 28, 1995. Since the Applicant's application for extension of time was filed on November 1, 2001, it is clearly well past the statutory time limit. The following statements of Nadon J.A. of the Federal Court in Carlson, supra, apply equally to the present facts:
9 ... Under subparagraph 165(1)(a)(ii) of the Act, a taxpayer who objects to an assessment must do so by serving on the Minister a notice of objection within ninety days after the day the notice of assessment was mailed to him. If the taxpayer fails to meet this delay, he may apply to the Minister and to the TCC for an extension of time.
10 However, both the Minister and the TCC are precluded under paragraphs 166.1(7)(a) and 166.2(5)(a) of the Act from extending the time in which to file a notice of objection unless the application is made within one year after the expiry of the time in which a notice of objection could have been made.
11 In the present case, one year after the expiry of the ninety days in which the respondent could have served his notice of objection is November 15, 1994. Thus, when the respondent served his notice of objection in February 1999, he was clearly out of time.
12 In concluding that the respondent had served his objection within the prescribed ninety days, the Deputy Judge took the position that since the respondent had only understood the meaning and significance of notice of assessment no. 7272 in late 1998 or early 1999, when he had discussions with Revenue Canada, time only started to run from that point in time. Consequently, in the Judge's view, the notice of objection served on February 16, 1999, was timely.
13 That view, with respect, is clearly wrong. As this Court has held on numerous occasions, when a taxpayer is unable to meet the deadline prescribed by the Act, even by reason of a failure of the postal system, neither the Minister nor the TCC can come to his help. (See Schafer v. Her Majesty the Queen [2000] F.C.J. 1480 (FCA); The Attorney General of Canada v. John F. Bowen [1992] 1 F.C. 311 (FCA)). Hence, if a postal failure cannot save a taxpayer, he will not be saved by his failure to grasp the significance of a notice of assessment served on him.
[5] As stated above, the Applicant referred to Rules 7, 9 and 12 of the Tax Court of Canada Rules (General Procedure). These rules do not take precedence over the clear language of the Income Tax Act. In Apollo Maintenance Service Ltd. v. Canada, 91 DTC 5417, MacGuigan J. stated:
However, subsection. 167(5) clearly limits the Trial Division's power to extend time for appeal to "one year after the expiration of the time otherwise limited by this Act for objecting to or appealing from the assessment in respect of which the application is made." On the facts of this case that time would expire by January 20, 1988, whereas the application for extension was not made until March 30, 1989.
[6] Despite the circumstances set out by the Applicant, I cannot alter the legislation as set out in subsection 167(5). The application is dismissed.
Signed at Ottawa, Canada, this 11th day of July, 2002.
"C.H. McArthur"
J.T.C.C.
COURT FILE NO.: 2001-3953(IT)APP
STYLE OF CAUSE: Mary Angela Schiavone and
Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 18, 2002
REASONS FOR ORDER BY: The Honourable Judge C.H. McArthur
DATE OF ORDER: February 26, 2002
APPEARANCES:
Agent for the Appellant: Paul F. Tiefenbach
Counsel for the Respondent: James Rhodes
COUNSEL OF RECORD:
For the Appellant:
Name: N/A
Firm:
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada