Date: 19990624
Docket: 1999-914-IT-APP
BETWEEN:
CONSTRUCTION DINAMO INC.,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for order
Lamarre Proulx, J.T.C.C.
[1] This is an application under section 166.2 of the Income Tax Act (“the Act”) to extend the time for serving a notice of objection. The application was sent by registered mail on February 1, 1999, which was the expiration date of the time limit of 90 days after the day on which notification of the decision by the Minister of National Revenue (“the Minister”) was mailed. The Court received the application on February 3, 1999.
[2] The respondent’s position is that the application must be dismissed because it was received by the Court after the expiration of the 90 days.
[3] Subsections 166.2(1) and (2) of the Act read as follows:
(1) A taxpayer who has made an application under subsection 166.1 may apply to the Tax Court of Canada to have the application granted after either
(a) the Minister has refused the application, or
(b) 90 days have elapsed after service of the application under subsection 166.1(1) and the Minister has not notified the taxpayer of the Minister’s decision,
but no application under this section may be made after the expiration of 90 days after the day on which notification of the decision was mailed to the taxpayer.
(2) An application under subsection (1) shall be made by filing in the Registry of the Tax Court of Canada, or by sending by registered mail addressed to an office of the Registry, 3 copies of the documents referred to in subsection 166.1(3) and 3 copies of the notification, if any, referred to in subsection 166.1(5).
(Emphasis added.)
[4] It is my view that the wording of subsection 166.2(2) of the Act means that the date an application is sent by registered mail is the date the application is made. Why else would this subsection provide that an application may be sent by registered mail? The Tax Court of Canada Rules (Informal Procedure) (“the Rules”) say nothing about the date the document is submitted, although it is clear in law that rules cannot change the terms of the Act.
[5] It is interesting to note that subsection 18(2) of the Tax Court of Canada Rules (General Procedure) states that, where a document is filed by registered mail, the date of mailing shall be the date of its filing unless the Court directs otherwise.
[6] In Diane Bordieri v. The Queen (A-336-94, April 27, 1995), [1995] 2 C.T.C. 15, the Federal Court of Appeal described the methods for making an application for an extension of time:
In our view, the only legal methods authorized for the making of such an application to the Tax Court are those provided for in subsection 166.2(2) of the statute. The method adopted by the applicant is not one that was authorized by the statute, both of whose methods of making such an application are mandatory. This Court is simply not able to ignore the clear language of the statute by sanctioning the method which failed. Put shortly, that method was not one that the statute authorized because it did not consist of either filing in person or by registered mail, both of which methods provide the certainty that any unauthorized method does not provide. Any other method of filing as is not already authorized can only be one that Parliament itself may decide to adopt. Finally, we can find nothing in section 166.2 as a whole which would allow this Court to disregard the plain language of subsection 166.2(2) in the circumstances before us.
[7] In conclusion, the computation of the time for making an application under section 166.2 of the Act requires not that the application be received but that it be sent by registered mail. Since the respondent submitted no reasons other than that the application was made outside the mandatory time limit, the application is accordingly granted and the notice of objection received with the application is regarded as validly served.
Signed at Ottawa, Canada, this 24th day of June 1999.
“Louise Lamarre Proulx”
J.T.C.C.
[OFFICIAL ENGLISH TRANSLATION]