Sutherland v. The Queen

Sutherland v. The Queen
Court (s) Database
Tax Court of Canada Judgments
Date
2011-03-16
Neutral citation
2011 TCC 170
File numbers
2010-3418(IT)APP
Judges and Taxing Officers
Wyman W. Webb
Subjects
Income Tax Act
Decision Content
Docket: 2010-3418(IT)APP
BETWEEN:
TRACY SUTHERLAND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Application heard on February 8, 2011 at Winnipeg, Manitoba
Before: The Honourable Justice Wyman W. Webb
Appearances:
Agent for the Appellant:
Leslie Sutherland
Counsel for the Respondent:
Larissa Benham
____________________________________________________________________
JUDGMENT
The Appellant’s Application to extend the time for serving a notice of objection in relation to the reassessment of the Appellant’s 2005 taxation year is dismissed without costs.
Signed at Ottawa, Ontario, this 16th day of March, 2011.
“Wyman W. Webb”
Webb, J.
Citation: 2011TCC170
Date: 20110316
Docket: 2010-3418(IT)APP
BETWEEN:
TRACY SUTHERLAND,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Webb, J.
[1] The Appellant was reassessed in relation to his tax liability for 2005 on April 1, 2009. The Appellant did not serve a notice of objection within the time specified by subsection 165(1) of the Income Tax Act (the “Act”), i.e. within 90 days of April 1, 2009. The Applicant applied to the Minister under section 166.1 of the Act to request an extension of time to serve the notice of objection. This application was made on July 9, 2010. This application was refused by the Minister and the Applicant then made this application pursuant to section 166.2 of the Act.
[2] Paragraph 166.2(5)(a) of the Act provides that:
(5) No application shall be granted under this section unless
(a) the application was made under subsection 166.1(1) within one year after the expiration of the time otherwise limited by this Act for serving a notice of objection or making a request, as the case may be; and
…
[3] The application under subsection 166.1(1) of the Act is the application made to the Minister to request an extension of time to serve the notice of objection which was made by the Applicant in this case on July 9, 2010 which was more than one year after the time limited by the Act for serving a notice of objection. Since subsection 165(1) of the Act provides that the time within which an individual may serve a notice of objection is the later of one year after the individual’s filing due date for the particular year and 90 days from the date of the date of the mailing of the notice of assessment, in this case, since the taxation year in issue is 2005, the Applicant would have had one year and 90 days from April 1, 2009 to apply for an extension of time to serve the notice of objection. He did not do so within this period of time. He stated that he thought that his accountant was looking after this but his accountant was ill and died at the end of March 2010.
[4] Unfortunately there is no discretion to extend the deadlines as set out in the Act and the provisions of subsection 166.2(5) of the Act are clear that no application may be granted by this Court unless both the requirements of paragraph (a) and (b) are satisfied. In this case the Applicant has failed to satisfy the requirements of paragraph 166.2(5)(a) of the Act.
[5] As a result the Appellant’s Application to extend the time for serving a notice of objection in relation to the reassessment of the Appellant’s 2005 taxation year is dismissed without costs.
Signed at Ottawa, Ontario, this 16th day of March, 2011.
“Wyman W. Webb”
Webb, J.
CITATION: 2011TCC170
COURT FILE NO.: 2010-3418(IT)APP
STYLE OF CAUSE: TRACY SUTHERLAND AND
HER MAJESTY THE QUEEN
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 8, 2011
REASONS FOR JUDGMENT BY: The Honourable Justice Wyman W. Webb
DATE OF JUDGMENT: March 16, 2011
APPEARANCES:
Agent for the Appellant:
Leslie Sutherland
Counsel for the Respondent:
Larissa Benham
COUNSEL OF RECORD:
For the Appellant:
Name:
Firm:
For the Respondent: Myles J. Kirvan
Deputy Attorney General of Canada
Ottawa, Canada