CUSTOMS AND EXCISE |
Excise Tax Act |
Canada v. Schafer
A-414-98
Isaac and Sharlow JJ.A.
20/9/00
12 pp.
Judicial review of Tax Court's dismissal of appeal from Minister's dismissal of application for extension of time in which to file notice of objection--Willows Golf Corporation owing $116,033.30 for federal goods and services tax (GST)--Crown believed Willows Golf Corporation transferring at least same amount of cash or property to principal shareholder, Reginald Schafer for less than fair market value consideration, and that Mr. Schafer transferred same amount to wife (applicant herein), and because of transfers she was vicariously liable pursuant to Excise Tax Act, s. 325 for GST liability of husband, Willows Golf Corp.--Applicant filing notices of objections to two notices of assessment received--Minister placing third notice of assessment in mail on September 2, 1993--Applicant testifying never received notice, first heard about it in examination for discovery on July 20, 1996--In September 1996 solicitors requested extension of time to file notice of objection thereto--Minister refusing request--Request renewed in Tax Court--Tax Court dismissing application on ground unnecessary because time limitation for objecting not starting to run until July 20, 1996--Application allowed--Per Isaac J.A. (Strayer J.A. concurring): s. 304(5)(a) merely stating Tax Court shall not hear application for extension of time if brought more than one year beyond expiration of time limited by s. 301(1.1)--S. 301(1.1) stating limitation period beginning to run 90 days after notice "sent"--Only requirement that Minister demonstrate notice sent--No requirement notice be received to start limitation period running--Language of s. 301(1.1) clear, unambiguous, must be applied regardless of its object, purpose--In any event, s. 334(1) (anything sent by first class mail deemed received by person to whom sent on day mailed) applies and respondent deemed to have received notice of assessment on September 2, 1993--S. 334(1) not creating rebuttable presumption as to date notice received for two reasons--(1) Extremely difficult to administer scheme requiring Minister to contact every person who has been sent notice of assessment by ordinary first class mail to ensure in fact received it--(2) S. 335(1) setting out manner of proof for Minister to demonstrate sent notice of assessment to taxpayer--That no corresponding section detailing how Minister or taxpayer to establish receipt of notice of assessment cogent evidence deeming provision conclusive--Per Sharlow J.A.: Parliament adopting rule making no allowance for possibility taxpayer may miss deadline for objecting, appealing because of failure of postal system--While not understanding Parliament's choice to deprive taxpayers of chance to challenge assessment of which unaware, choice Parliament entitled to make--Excise Tax Act, R.S.C., 1985, c. E-15, ss. 300 (as enacted by S.C. 1990, c. 45, s. 12), 301(1.1) (as enacted idem; S.C. 1997, c. 10, s. 82), 304(5)(a) (as enacted idem), 325 (as enacted idem; S.C. 1993, c. 27, s. 134), 334(1) (as enacted idem), 335(1) (as enacted idem; S.C. 1999, c. 17, s. 156).