BETWEEN:
and
____________________________________________________________________
Motion heard on November 16, 2005, at Montreal, Quebec.
Before: The Honourable Justice Pierre R. Dussault
Appearances:
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ORDER
Upon motion made by counsel for the respondent for a judgment dismissing "the ensemble of procedures contained in Applicant's document entitled 'Notice of Notice of Appeal'";
The motion is allowed, the purported appeals brought under Part IX of the Excise Tax Act are quashed and the appellant's application for an extension of the time for filing a notice of objection to the February 2, 2001 assessment is dismissed, in accordance with the attached Reasons for Order.
Signed at Ottawa, Canada, this 9th day of December 2005.
"P. R. Dussault"
BETWEEN:
PETER KERR MEDIA SALES INC.,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
[1] On June 8, 2005, Peter Kerr Media Sales Inc. filed with the Court a document entitled "Notice of Notice of Appeal" and purporting to institute appeals from assessments made under Part IX of the Excise Tax Act (GST) (the "Act").
[2] On September 19, 2005, the respondent brought a motion asking the Court "to dismiss the ensemble of procedures contained in Applicant's document entitled 'Notice of Notice of Appeal'". Although Peter Kerr Media Sales Inc. is referred to as the "applicant" in the notice of motion I shall myself, solely for the sake of convenience, be referring to that entity as the "appellant", since the document filed with the Court is far from clear, but purports to be first and foremost a notice of appeal. However, as will be seen, one paragraph of the document could be interpreted as an application to extend the time for filing a notice of objection to the February 2, 2001, assessment.
[3] The grounds for the motion as stated in the notice of motion are the following (Annexes A to K in support of the motion are not reproduced):
1. With respect to the assessment whose notice is dated August 4, 2000 and bears number T00-C-0056, for the period from November 1, 1995 to April 30, 2000 (hereinafter the "relevant period"), issued in accordance with the Excise Tax Act (R.S.C. 1985, c. E-15 as amended; hereinafter the "ETA"):
a) on August 4, 2000, the Respondent though [sic] the Minister of Revenue of Québec (hereinafter referred to as the "Minister") made an assessment in respect of the Applicant and sent Applicant a copy of same to "14 rue Milner, Porte 101, Montréal-Ouest (Québec)" as it appears from the said assessment, a copy of which is attached herewith in "Annex A";
b) the said assessment was returned to Respondent with the indication that Applicant had apparently moved and, on October 6, 2000, having been apprised of Applicant's new address, the notice of assessment bearing number T00-C-0056 and dated August 4, 2000 was sent to Applicant at "18 Westminster, Suite 106, Montréal-Ouest (Québec)", as it appears from a copy of the assessment and from an affidavit of Mireille Longpré, copies of which are attached hereto, in "Annex B";
c) on January 16, 2002, Applicant filed a notice of objection to the assessment bearing number T00-C-0056 and dated August 4, 2000, to which was joined a "Request for an extension of delay", as it appears from said Notice of objection and its annexes, a copy of which are [sic] attached hereto in "Annex C", the whole without any admission as to the contents or validity of the said document, which is expressly denied;
d) on January 25, 2002, Applicant was advised by the Minister that his Notice of objection regarding assessment number T00-C-0056 could not be accepted as it was not served within the delays prescribed by law, as it appears from the letter sent by the Minister to Applicant, dated January 25, 2002, a copy of which is attached hereto in "Annex D";
e) on February 5, 2002, the Minister advised Applicant that additional information was required regarding the circumstances of the delay before the application could be sent to the "Canada Customs and Revenue Agency", as it appears from the letter sent by the Minister to Appellant, dated February 5, 2002, a copy of which is attached hereto in "Annex E";
f) in any event, on July 19, 2002, the Minister made a reassessment for the relevant period and sent Applicant a notice of reassessment bearing number T02-DS2-MB-0019; as it appears from the said notice of reassessment, dated July 19, 2002, and an affidavit of Marie Bergeron, copies of which are attached hereto in "Annex F";
g) as it appears from the said notice of reassessment (Annex F), "Cet avis annule et remplace l'avis T00-C-0056 émis le 2000-08-04 pour la période du 1995-11-01 au 2000-04-30";
h) because the assessment, whose notice is dated August 4, 2000 (Annex B), was cancelled and replaced by the reassessment, whose notice is dated July 19, 2002 (Annex F), any and all requests, contained in Applicant's "Notice of Notice of Appeal", to appeal the assessment dated August 4, 2000 and/or to extend the delays to object to this assessment are thus null and void as they were made regarding an assessment which is no longer in existence;
2. Regarding the reassessment, whose notice is dated July 19, 2002 and bears number T02-DS2-MB-0019, for the relevant period, (which cancelled and replaced the assessment dated August 4, 2000):
a) Applicant did not serve a Notice of objection regarding said reassessment in accordance with the provisions of section 301 of the ETA, as it appears from an affidavit of Louise Haspect, a copy of which is attached hereto in "Annex G";
b) in addition, Applicant did not make an application to the Minister to extend the time for filing a Notice of objection regarding said reassessment in accordance with the provisions of section 303 of the ETA; as it appears from an affidavit of Paul Arseneau, a copy of which is attached hereto in "Annex H";
c) because Applicant failed to file a Notice of objection regarding the reassessment, whose notice is dated July 19, 2002, in accordance with section 301 of the ETA, the Court lacks jurisdiction regarding the appeal filed by Applicant regarding said reassessment, due to the provisions of sections 302 or 306 of the ETA;
d) in addition, because the Applicant never made an application to the Minister to extend the time to object to the reassessment, in accordance with section 303 of the ETA, this Court lacks jurisdiction to examine Applicant's request for an extension of time to object to said reassessment, due to the provisions of section 304 of the ETA;
e) Respondent therefore requests that this Court dismiss all demands made by Applicant in his "Notice of Notice of Appeal" regarding the reassessment, whose notice is dated July 19, 2002 and bears number T02-DS2-MB-0019;
3. With respect to the assessment, whose notice is dated February 2, 2001, regarding the period November 1, 1992 to July 31, 1995:
a) on February 2, 2001, the Minister made an assessment in respect of Applicant in accordance with the ETA, as it appears from said assessment, a copy of the notice of assessment is attached hereto as "Annex l";
b) on January 16, 2002, Applicant filed a Notice of objection regarding said assessment, to which was joined a "Request for an extension of delay", (Annex C), without any admission as to the contents of [sic] validity of said document, which is expressly denied;
c) Applicant was advised by the Minister that the application for an extension of the delay to object to the said assessment would not be sent to the Canada Customs and Revenue Agency until Applicant provided the Minister with details of the circumstances explaining the delay to file an objection, (Annex E);
d) despite the Minister's request (Annex E), no additional information was provided by Applicant and the application for an extension of time was not considered nor was any decision taken by the Minister, under subsection 303(5) of the ETA, as it appears from the affidavit of Mr. Paul Arseneau (Annex H);
e) in the absence of a Notice of objection filed in accordance with subsection 301(1.1) of the ETA and in absence of a Notice of decision being sent by the Minister under subsection 301(5) of the ETA, this Court lacks jurisdiction in accordance with sections 304 and 306 of the ETA regarding the appeal filed by Applicant regarding said assessment and regarding the request to extend the delays for filing an objection thereto;
f) in addition should the Court consider it has jurisdiction regarding any application made to this Court by Applicant for an extension of time to object to the assessment, Respondent submits that the said application should be dismissed, most notably since Applicant has not demonstrated that he met the criteria set out in paragraph 304(5)(b) of the ETA;
4. With respect to the assessment whose notice is dated December 19, 2001 for the reporting period of January 1, 2001 to March 31, 2001:
a) on December 19, 2001, the Minister established an assessment in respect of Applicant for the period January 1, 2001 to March 31, 2001, as it appears from the notice of assessment, a copy of which is attached hereto in "Annex J";
b) on January 16, 2002, Applicant filed a Notice of objection regarding inter alia, said assessment (Annex C);
c) on April 17, 2002, the Minister sent his notice of decision to Applicant regarding said assessment, as it appears from the said decision, a copy of which is attached in "Annex K";
d) in the event that Applicant's "Notice of Notice of Appeal", filed on June 8, 2005, includes an appeal of said assessment, such appeal was instituted beyond the legal delays outlined in section 306 of the ETA;
e) furthermore, no application to extend the delays for filing an appeal was presented, in the prescribed delay, by Applicant to this Court in accordance with section 305 of the ETA;
f) the Court therefore lacks jurisdiction to examine the appeal with respect to the assessment whose notice is dated December 19, 2001.
[4] Mr. Peter Kerr testified for the appellant and submitted in evidence Exhibits A-1 to A-15 consisting mainly in correspondence between the appellant and the Ministère du Revenu du Québec ("Ministère") from January 2002 to March 2004. Counsel for the respondent objected to the production of these documents on the basis that they were not relevant and, as regards the letters originating from the Ministère, on the basis that the author had not been called to testify.
[5] As counsel for the appellant kept insisting on the importance of those documents as forming the basis of his arguments, I agreed that they could be filed and simply took the matter under advisement, especially since the appeals or purported appeals had been filed under the informal procedure of this Court. After examination of the said documents, I will simply say that they have little bearing on the issues to be decided, for no taxpayer is exempted from satisfying the requirements of the Act with respect to filing a valid notice of objection to an assessment as well as a notice of appeal from that assessment within the time limits prescribed in the Act.
[6] At the outset, I must say that the appellant has completely ignored or overlooked these requirements and, as will be seen, its counsel has advanced new and far-fetched arguments in trying to sustain the appellant's right of appeal.
[7] The basic facts upon which the respondent's motion rests have not been directly challenged by the appellant.
[8] The assessment, notice of which is dated August 4, 2000, and bears number T00-C-0056, for the period from November 1, 1995, to April 30, 2000, after being sent to the appellant's former address was sent to the appellant's new address on October 6, 2000. Counting from the day after that date the 90-day period within which a notice of objection could be filed with the Minister means that the appellant would have had to file its notice of objection at the latest on January 4, 2001 (subsection 301(1.1) of the Act).
[9] As the notice of objection was not filed within the 90-day period, the appellant could have made an application to the Minister for an extension of the time for filing a notice of objection (subsection 303(1) of the Act). However, the Minister could only have granted such an application if it was made within one year after the expiration of the 90-day period for objecting (paragraph 303(7)(a) of the Act). Thus, the application had to be made at the latest on January 4, 2002. The notice of objection and application to extend the time for filing a notice of objection were actually filed on January 16, 2002, clearly not within the time limit. So, to the extent that the notice of objection and application of the appellant related to the assessment for the period from November 1, 1995, to April 30, 2000 (notice of assessment number T00-C-0056), the Minister had no authority to extend the time or "to waive the time limits" prescribed in the Act, as counsel for the appellant seems to imply that he had. Inasmuch as they relate to that particular assessment, the letters of the Minister dated January 25, 2002 (Annex D to the notice of motion) and February 5, 2002 (Annex E to the notice of motion) asking for additional information before the application could be considered would thus appear to be misleading. However, in a letter dated April 4, 2002, the Minister at the administrative level, agreed to consider "les faits comptables nouveaux [mentionnés] dans [l']opposition" (Exhibit A-1). Counsel for the appellant argues that the letter should be considered a "waiver" or a "constructive waiver" by the Minister of the time limit for objecting. I must stress that the Minister has no authority or discretion to accept or to deem valid a notice of objection and application that have been filed with the Minister after a period of one year following the normal 90-day period for objecting (paragraph 303(7)(a) of the Act). The same holds true for the Court (paragraph 304(5)(a) of the Act). (See, inter alia: McCarthey v. R., [2001] G.S.T.C. 46).
[10] That first assessment for the period from November 1, 1995, to April 30, 2000 (notice of assessment number T00-C-0056 dated August 4, 2000) was cancelled and replaced by a reassessment for the same period. The notice thereof bears number T02-DS2-MB-0019 and is dated July 19, 2002. Section 302 of the Act provides as follows:
302. Appeal to Tax Court - Where a person files a notice of objection to an assessment and the Minister sends to the person a notice of a reassessment or an additional assessment, in respect of any matter dealt with in the notice of objection, the person may, within ninety days after the day the notice of reassessment or additional assessment was sent by the Minister,
(a) appeal therefrom to the Tax Court; or
(b) where an appeal has already been instituted in respect of the matter, amend the appeal by joining thereto an appeal in respect of the reassessment or additional assessment in such manner and on such terms as the Tax Court directs.
[11] One will appreciate that for that section to apply there must have been first the filing of a notice of objection to an assessment. It is trite to say that the notice of objection must have been validly filed in order for section 302 to apply. As stated above, no such notice of objection was validly filed by the appellant with respect to the first assessment (notice number T00-C-0056 dated August 4, 2000). Moreover, no appeal was taken to the Tax Court of Canada within the 90-day period referred to in section 302. Finally, no objection to the reassessment (notice number T02-DS2-MB-0019 dated July 19, 2002) has ever been filed. Nor was there ever an application to the Minister to extend the time for filing a notice of objection thereto. Without a prior application having been made to the Minister, the Court cannot entertain such an application (subsection 304(1) of the Act). Again, without a prior valid notice of objection, the Court cannot entertain an appeal from an assessment (section 302 of the Act). The argument of counsel for the appellant that the notice of objection dated January 16, 2002, and subsequent correspondence should be considered a "constructive notice of objection" or "an objection in anticipation" to that reassessment simply does not make any sense given the requirements of the Act.
[12] On February 2, 2001, the Minister assessed the appellant for the period from November 1, 1992, to July 31, 1995 (Annex I to the notice of motion). The appellant did not file a notice of objection with the Minister within the 90-day period prescribed in subsection 301(1.1) of the Act. On January 16, 2002, the appellant filed with the Minister a notice of objection and an application to extend the time for filing a notice of objection. In a letter dated February 5, 2002 (Annex E to the notice of motion), the appellant was asked to demonstrate either that it had been unable to act or that it had had the intention of objecting within the 90-day period. The appellant did not provide the information required by the Minister in order for the appellant, to satisfy these requirements of paragraph 303(7)(b) of the Act, and so the Minister never made any decision with respect to the appellant's application.
[13] As more than 90 days had elapsed since the application was made on January 16, 2002, and the Minister had not notified the appellant of his decision, paragraph 304(1)(b) of the Act could have been resorted to by the appellant and it could have filed with the Tax Court of Canada an application to extend the time for filing a notice of objection to the assessment of February 2, 2001.
[14] One could consider that the application of January 16, 2002, was not validly made since the appellant did not provide the required information. However, if one considers that it was nonetheless validly made, paragraph 14) b. of the document entitled "Notice of Notice of Appeal" filed by the appellant with the Tax Court of Canada, although it is not clear, could perhaps be interpreted as an application to extend the time for filing a notice of objection to the February 2, 2001, assessment. That paragraph reads as follows:
14) Hence, we are making an appeal to the Tax Court of Canada asking:
b. That the taxpayer has a legal right to an opposition to the contested indebtedness based on the Federal tax.. (Included therewith is an extension of delays to make the opposition(s) herein.)
[15] However, paragraph 304(5)(b) of the Act provides that an application shall not be granted by the Tax Court of Canada unless certain conditions are satisfied, one of these being that the person making the application demonstrate that within the 90-day period for objecting "the person was unable to act or to give a mandate to act in the person's name, or . . . had a bona fide intention to object to the assessment".
[16] The appellant brought no evidence to demonstrate that the requirements of paragraph 304(5)(b) have been satisfied.
[17] Again, without a prior valid objection, the Tax Court of Canada cannot entertain an appeal from an assessment (section 302 of the Act).
[18] The last assessment in issue is for the period from January 1, 2001, to March 31, 2001. The notice is dated December 19, 2001 (Annex J to the notice of motion -- this annex was filed with the Court on consent after the hearing).
[19] The appellant objected to that assessment on January 16, 2002 (Annex C to the notice of motion) and the assessment was confirmed by notice sent on April 17, 2002 (Annex K to the notice of motion).
[20] No appeal was filed with the Tax Court of Canada within the 90-day period prescribed in section 306 of the Act, which expired July 16, 2002, and the appellant never made within the year following that date (i.e., at the latest on July 16, 2003) an application to the Tax Court of Canada to extend the time for appealing; thus no order granting such an extension can be made by the Court (paragraph 305(5)(a) of the Act).
[21] In consequence, the Court cannot entertain an appeal with respect to the assessment dated December 19, 2001, as it has not been validly instituted.
[22] Counsel for the appellant filed with the Cour du Québec a notice of appeal on March 18, 2004, and an "Amended Motion in Appeal" on December 2, 2004, purporting to appeal the assessments made under the Act as well as those made under the Act respecting the Québec Sales Tax (Exhibit A-15). The sous-ministre du Revenu du Québec brought a motion to quash (requête en irrecevabilité) on the basis that the Cour du Québec had no jurisdiction to deal with appeals under the Act. As could be expected, the motion was allowed to the extent that the appeals purported to be appeals with respect to assessments made under the Act, since the Tax Court of Canada has exclusive original jurisdiction to hear such appeals, as provided in subsection 12(1) of the Tax Court of Canada Act (Exhibit R-2).
[23] Now, counsel for the appellant, relying on article 2892 of the Civil Code of Québec, contends that the appeal brought in the Cour du Québec constituted a civil interruption of the prescriptive period for the purpose of appealing to the Tax Court of Canada. This argument is simply without any merit. The provisions of the Act prescribing the time limits are similar to those in the Income Tax Act. It has been held that they must be strictly adhered to (see inter alia: Carlson v. R., [2002] 2 C.T.C. 212 (F.C.A.), and McClelland v. R., [2004] 5 C.T.C. 109 (F.C.A.)).
[24] Therefore, the motion is allowed, the purported appeals are quashed and the application to extend the time for filing a notice of objection to the February 2, 2001, assessment is dismissed.
Signed at Ottawa, Canada, this 9th day of December 2005.
"P. R. Dussault"
Dussault, J.
COURT FILE NO.: 2005-2410(GST)I
STYLE OF CAUSE: PETER KERR MEDIA SALES INC. AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: November 16, 2005
REASONS FOR ORDER BY: The Honourable Justice Pierre R. Dussault
DATE OF ORDER: December 9, 2005
APPEARANCES:
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Counsel for the Appellant: |
Allan J. Gold
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Counsel for the Respondent: |
Judith Kucharsky |
COUNSEL OF RECORD:
Firm: Avocat, Montreal (Québec)
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario