Tax Court of Canada Judgments

Date: 20000208

Docket: 2000-2647-IT-APP

BETWEEN:

DANIELLE SHÉRIDAN,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

Rip, J.T.C.C.

[1]            Danielle Shéridan applied for an order extending the time within which she could institute an appeal in respect of the reassessment for the 1995 taxation year, which reassessment is dated August 19, 1996.

[2]            On or about October 15, 1996, Ms. Shéridan served the Minister of National Revenue (the "Minister") with a notice of objection to a reassessment for 1995. The Minister informed Ms. Shéridan, in a communication dated January 22, 1999, that he was confirming the said reassessment for 1995.

[3]            Subsection 169(1) of the Income Tax Act (the "Act") provides as follows:

                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 to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.

[4]            The applicant did not file a notice of appeal in respect of the reassessment for the 1995 taxation year within the time prescribed by subsection 169(1) of the Act, that is, not later than April 22, 1999.

[5]            A taxpayer who has not instituted an appeal under section 169 of the Act within the time limit specified may apply to the Tax Court of Canada for an extension of the time for appealing.

[6]            The conditions governing such an application are stated in subsection 167(5) of the Act, which reads as follows:

(5) 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; and

(b)    the taxpayer demonstrates that

(i) within the time otherwise limited by section 169 for appealing the taxpayer

(A) was unable to act or to instruct another to act in the taxpayer's name, or

(B)     had a bona fide intention to appeal,

                               (ii)            given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application,

                               (iii)           the application was made as soon as circumstances permitted, and

                                                (iv)           there are reasonable grounds for the appeal.

[7]            Ms. Shéridan's application, dated June 8, 2000, was received by and filed with the Court on June 12, 2000.

[8]            Ms. Shéridan and her husband, André Veilleux, had a number of telephone discussions with representatives of Revenue Canada-the predecessor of the Canada Customs and Revenue Agency (the "Agency")-and in particular with Ms. Daure of the collection service. Ms. Daure told them to apply to this Court for an order extending the time for instituting an appeal from the reassessment for the 1995 taxation year. Mr. Veilleux claims that he faxed an application on August 31, 1999.

[9]            Ms. Daure testified that she and other officials had been in contact with Mr. Veilleux and Ms. Shéridan from October 8, 1996, until June 28, 2000. On October 8, 1996, Mr. Veilleux asked for information about filing an objection. On June 2, 1999, Ms. Daure telephoned Ms. Shéridan with regard to taking legal steps because payment was due, but Ms. Shéridan indicated that she still wanted to appeal. On June 11, Ms. Daure spoke to Mr. Veilleux; he was going to apply for an extension of the time for instituting an appeal. On the same day, Ms. Daure asked Mr. Veilleux for a copy of the notice of objection. He replied that he would send her the notice within two weeks. On August 19, Ms. Daure still had not received anything. There were other telephone calls involving Mr. Boabel and Ms. Daure of the Agency on the one hand and Mr. Veilleux and Ms. Shéridan on the other hand. According to the notes that Ms. Daure had with her, Mr. Boabel contacted Revenu Québec on February 2 and 8, 2000, if I understand correctly, to confirm that Ms. Shéridan had not objected to a similar assessment made by Revenu Québec. Ms. Daure also discussed the problem with the Agency's technical adviser. There is no need to look at every conversation between the appellant and her husband and Agency officials. Suffice it to say that neither this Court nor the Agency received an application for an extension of time prior to August 21, 2000.

[10]          Unfortunately, Mr. Veilleux made at least one mistake. It is true that the address on the document dated August 31, 1999, is that of this Court, but Mr. Veilleux tried to send the document to the fax number of the Agency's Longueuil office. However, the number for the Longueuil office is 928-xxxx, area code 450, whereas Mr. Veilleux used the Montréal area code, that is, 514. The fax transmission report indicates that the fax was received at (514) 928-xxxx. Mr. Veilleux accordingly thought that the fax had been received by the Agency, but this was not so. Apparently, it was received by an individual whose private home number was (514) 928-xxxx. Neither the Court nor the Agency received the fax. Mr. Veilleux testified that he usually uses the 514 area code and that, out of habit, he dialled 514 instead of 450.

[11]          The application for an extension of time was set down for hearing on October 11, 2000. During the presentation of the evidence on October 11, Mr. Veilleux at the earliest opportunity filed the evidence showing that he had faxed Ms. Shéridan's application to (514) 928-xxxx. He was certain that this number was the Agency's number in Longueuil and that the Department received the application, notwithstanding the fact that the application was addressed to the Montréal office of the Tax Court of Canada. The respondent denied receiving it. I accordingly postponed the hearing of the application to my next sitting in Montréal, on January 19, 2001.

[12]          Mr. Veilleux discovered the mistake with respect to the area code before the hearing on January 19, 2001. Ms. Shéridan testified that she was sure that the fax had been received by the Agency. She had received confirmation on August 31, 1999, through the transmission report, that the communication had been received (see Exhibit I-1). She believed that the first appeal that she had sent to the Court in August 1999 had been forwarded to the right place and the right person.

[13]          However, the document that Ms. Shéridan had wanted to fax to the Court was a Notice of Appeal, and not an application for an extension of time, which was another mistake on her part.

[14]          It is clear that Ms. Shéridan did not file her application for an extension of the time for instituting an appeal within one year after the expiration of the time limited by section 169 for appealing. The last day on which Ms. Shéridan could apply for an extension of time was April 21, 2000.

[15]          I must therefore dismiss her application.[1]

Signed at Ottawa, Canada, this 8th day of February 2001.

"Gerald J. Rip"

J.T.C.C.

Translation certified true on this 20th day of November 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]

2000-2647(IT)APP

BETWEEN:

DANIELLE SHÉRIDAN,

Applicant,

and

HER MAJESTY THE QUEEN,

Respondent.

Application heard on January 19, 2001, at Montréal, Quebec, by

the Honourable Judge Gerald J. Rip

Appearances

For the Applicant:                                                 The Applicant herself

Counsel for the Respondent:              Annick Provencher

ORDER

                Upon application for an order extending the time within which an appeal from an assessment made under the Income Tax Act for the 1995 taxation year may be instituted;

                And upon hearing what was alleged by the parties;

                The application is dismissed.

Signed at Ottawa, Canada, this 8th day of February 2001.

"Gerald J. Rip"

J.T.C.C.

Translation certified true on this 20th day of November 2002.

Erich Klein, Revisor

[OFFICIAL ENGLISH TRANSLATION]