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Docket: 2002-4494(IT)APP |
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BETWEEN: |
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GEORGE PAPADIONYSIOU, |
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Applicant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
____________________________________________________________________
Application heard on March 25, 2003, at Ottawa, Ontario.
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Before: The Honourable Judge Lucie Lamarre |
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Appearances: |
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Agent for the Applicant: |
Allan Scope |
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Counsel for the Respondent: |
Tony Chambers |
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ORDER
Upon hearing the application for an Order extending the time within which appeals from the reassessments made under the Income Tax Act for the 1998 and 1999 taxation years may be instituted;
And upon hearing what was alleged by the parties;
The application is dismissed.
Signed at Ottawa, Canada, this 11th day of April 2003.
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"Lucie Lamarre" |
J.T.C.C.
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Citation: 2003TCC262 |
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Date: 20030411 |
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Docket: 2002-4494(IT)APP |
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BETWEEN: |
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GEORGE PAPADIONYSIOU, |
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Applicant, |
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and |
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HER MAJESTY THE QUEEN, |
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Respondent. |
REASONS FOR ORDER
Lamarre, J.T.C.C.
[1] The application for an extension of the time within which the applicant may file with this Court a Notice of Appeal regarding reassessments dated October 17, 2000 made by the Minister of National Revenue ("Minister") with respect to the applicant's 1998 and 1999 taxation years is dismissed.
[2] The Minister initially assessed the applicant's income tax returns for the 1998 and 1999 taxation years by Notices of Assessment dated May 17, 1999 and June 22, 2000 respectively and mailed to the applicant on those dates.
[3] The Minister reassessed the applicant's income tax returns for the 1998 and 1999 taxation years by Notices of Reassessment dated October 17, 2000 and mailed to the applicant on that date.
[4] On December 15, 2000, the applicant served on the Minister a Notice of Objection to the aforementioned October 17, 2000 reassessments.
[5] By Notice of Confirmation dated October 29, 2001 and sent to the applicant on that same date, the Minister confirmed the said reassessments.
[6] On November 21, 2002, the applicant's agent filed with the Court a Notice of Appeal in which he sought an order extending the time within which the appeal could be instituted.
[7] The time limit for filing an appeal is found in subsection 169(1) of the Income Tax Act ("Act"):
SECTION 169: Appeal.
(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 to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed.
[8] A taxpayer may request an extension of time for instituting an appeal if certain requirements are met, as may be seen in subsections 167(1) and 167(5) of the Act:
SECTION 167: Extension of time to appeal.
(1) Where an appeal to the Tax Court of Canada has not been instituted by a taxpayer under section 169 within the time limited by that section for doing so, the taxpayer may make an application to the Court for an order extending the time within which the appeal may be instituted and the Court may make an order extending the time for appealing and may impose such terms as it deems just.
4167(5)3
(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; 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.
[9] Although the applicant's agent, Mr. Allan Scope, C.G.A., was present to explain why he himself did not file the Notice of Appeal on time, the appellant was not in Court to explain why he was unable to act or to instruct someone other than Mr. Scope to act on his behalf within the time otherwise limited by section 169 of the Act for appealing the reassessments in question, as required by clause 167(5)(b)(i)(A) of the Act.
[10] Mr. Scope testified that he was fighting cancer and was about to start chemotherapy treatments when the applicant received the Notice of Confirmation dated October 29, 2001 confirming the October 17, 2000 reassessments. At that time, the applicant informed Mr. Scope that he had received the Notice of Confirmation but it does not seem that the applicant, despite being aware of Mr. Scope's health problems, followed-up himself or instructed anyone else to follow-up regarding his tax matters. It was only on November 21, 2002, that Mr. Scope finally filed a Notice of Appeal with a request for an extension of time. The time for filing a Notice of Appeal had expired on January 27, 2002.
[11] The testimony of Mr. Scope alone was not sufficient to demonstrate either that the applicant had a bona fide intention to appeal the reassessments at issue within the time otherwise limited by section 169 of the Act, as required by clause 167(5)(b)(i)(B) of the Act, or that the present application was made as soon as circumstances permitted, as required by subparagraph 167(5)(b)(iii) of the Act.
[12] Although duly notified by Mr. Scope of the date and time of the hearing of the present application for an extension of time for filing a Notice of Appeal, the applicant was not present and signed no affidavit explaining why he did not comply with the time restrictions imposed by the Act with respect to the filing of a Notice of Appeal.
[13] For these reasons, I do not have any choice but to dismiss the application.
Signed at Ottawa, Canada, this 11th day of April 2003.
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"Lucie Lamarre" |
J.T.C.C.
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CITATION: |
2003TCC262 |
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COURT FILE NO.: |
2002-4494(IT)APP |
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STYLE OF CAUSE: |
George Papadionysiou v. The Queen |
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PLACE OF HEARING: |
Ottawa, Ontario |
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DATE OF HEARING: |
March 25, 2003 |
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REASONS FOR JUDGMENT BY: |
The Honourable Judge Lucie Lamarre |
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DATE OF JUDGMENT: |
April 11, 2003 |
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APPEARANCES: |
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Agent for the Appellant: |
Allan Scope |
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Counsel for the Respondent: |
Tony Chambers |
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COUNSEL OF RECORD: |
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For the Appellant: |
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Name: |
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Firm: |
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For the Respondent: |
Morris Rosenberg Deputy Attorney General of Canada Ottawa, Canada |