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A-541-90
The Attorney General of Canada (Applicant)
v.
John F. Bowen (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. BO WEN (CA.)
Court of Appeal, Heald, Stone and Linden JJ.A.— Calgary, October 25, 1991.
Income tax— Practice — Application to set aside Tax Court of Canada (TCC) decision order extending time to institute appeal not required — Revenue Canada sending notification of confirmation to respondent by registered mail three times in August, September /988 — Returned marked "refused" — Confirmation notice not received prior to expiry of time fixed by Income Tax Act for filing notice of appeal or for seeking extension of time to do so — Tax Court Judge concluding extension of time unnecessary, based on Antoniou v. M.N.R., wherein TCC holding Revenue Canada required to demon strate clear notification of commencement and duration of time period for appeal received by taxpayer when rights of taxpayer to be before Court directly affected — Application allowed — Conclusion disregards plain meaning of Income Tax Act, ss. /65(3), 169 — Parliament imposing duty to notify respondent by registered mail — Requiring neither personal service nor receipt of notification — Minister not obliged to look further than addresses furnished by taxpayer.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Income Tax Act, S.C. 1970-7I-72, c. 63, ss. 165(3) (as am. by S.C. 1980-81-82-83, c. 158, s. 58), 169 (as am. idem; S.C. 1984, c. 45, s. 70).
CASES JUDICIALLY CONSIDERED REVERSED:
Bowen, J.F. v. M.N.R. (1990), 90 DTC 1625 (T.C.C.). OVERRULED:
Antoniou (C.) v. M.N.R., [1988] 2 C.T.C. 2055; (1988), 88 DTC 1415 (T.C.C.).
COUNSEL:
Helen C. Turner for applicant.
APPEARANCE:
John F. Bowen on his own behalf. SOLICITOR:
Deputy Attorney General of Canada for appli cant.
RESPONDENT ON HIS OWN BEHALF:
John F. Bowen, Sherwood Park, Alberta.
The following are the reasons for judgment of the Court delivered orally in English by
STONE J.A.: The applicant seeks to set aside an order of the Tax Court of Canada made on June 13, 1990 [(1990), 90 DTC 1625] whereby it was deter mined that the applicant did not require an order extending time wherein to institute an appeal with respect to the taxation years 1981, 1982, 1983 and 1984.
The circumstances which led to that order being made may be briefly summarized. In August 1988, after reviewing a notice of objection filed on Septem- ber 14, 1987 in respect of the taxation years in ques tion, the Appeals Branch of Revenue Canada Taxa tion through its Edmonton District Office dispatched a notification of confirmation to the respondent by registered mail. The notification was returned by the post office. Two additional attempts to so communi cate the notification were similarly unsuccessful.
The Tax Court Judge dealt with the evidence sur rounding these attempts at page 1627. He said:
There were three separate and complete efforts to serve Mr. Bowen with this confirmation document—the last on Septem- ber 2, 1988. All were returned marked "refused". The first mailing had been made to the address on Mr. Bowen's income tax returns. Between the first and second mailings, a more detailed computer search had been made of the Revenue Canada records and it was determined a "change of address" letter had been received from Mr. Bowen on March 15, 1988, and that was used for the second and third mailings.
It was common ground that the respondent did not receive the confirmation notice until some time after the time fixed by the Income Tax Act [S.C. 1970-71-
72, c. 63] for filing notice of appeal or for seeking an extension of time to do so, had expired. At page 1628, he stated:
It would not be difficult to reach a conclusion that Revenue Canada had done all it possibly could do to properly notify Mr. Bowen. Nor would it be difficult to reach a conclusion that Mr. Bowen had been less than circumspect and cautious in keeping Revenue Canada at all times aware of a current mailing address, or a clear and certain arrangement for an agent to look after his income tax affairs. It is difficult to imagine the consis tent "refusals" of the mailed notifications—someone must have "refused" them. This taxpayer filed the application involved and it came before the Court only as a result of his own enqui ries to Revenue Canada in December 1989, asking for infor mation regarding the results of the Notice of Objection already filed. He was informed—according to him—that he was out of time to file (ninety days) but that he could file for an extension of time. It is for that reason the Notice of Appeal (as I have already determined it to be for these purposes) and the applica tion for extension of time at issue were filed with the Court concurrently—dated February 2, 1990.
In concluding that no extension of time was neces sary, the Judge had regard for an earlier decision of the Tax Court of Canada in Antoniou (C.) v. M.N.R., [1988] 2 C.T.C. 2055 upon the construction of para graph 167(5)(a), and then stated, at pages 1628-1629:
Since the decision in Antoniou, supra remains undisturbed, the conclusion I reach is that when the issue before the Court touches directly on the rights of a taxpayer to be before this Court, what may be regarded by Revenue Canada as every rea sonable effort to notify the taxpayer may not be sufficient. It must be incumbent on the respondent to demonstrate that clear notification of the commencement and duration of the criti- cal—perhaps fateful—time period has been received by the taxpayer.
With respect, we are unable to agree with that con clusion. In our view, it disregards the plain meaning of subsection 165(3) [as am. by S.C. 1980-81-82-83, c. 158, s. 58] and section 169 [as am. idem; S.C. 1984, c. 45, s. 70] of the Act, which read:
165....
(3) Upon receipt of a notice of objection under this section, the Minister shall,
(a) with all due dispatch reconsider the assessment and vacate, confirm or vary the assessment or reassess, or
(b) where the taxpayer indicates in the notice of objection that he wishes to appeal immediately either to the Tax Court of Canada or to the Federal Court and that he waives recon sideration of the assessment and the Minister consents, file a copy of the notice of objection with the Registrar of the Tax Court or in the Registry of the Federal Court, as the case may be,
and he shall thereupon notify the taxpayer of his action by reg istered mail.
169. Where a taxpayer has served notice of objection to an assessment under section 165, he 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 objec tion and the Minister has not notified the taxpayer that he 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.
In our opinion, the duty resting upon the Minister under subsection 165(3) was to do precisely what he did, viz., notify the respondent of the confirmation by registered mail. Nothing in that subsection or in sec tion 169 required the notification to be "served" per sonally or to be received by the taxpayer. In dispatch ing the notification by registered mail the Minister was entitled to avail himself of the address or addresses which the respondent himself had already furnished. There was no obligation on him to look beyond that information. Moreover, a requirement for the receipt of the notification would be difficult if not totally unworkable from an administrative stand point. Parliament has not required it; it has required merely that the notification he dispatched by regis tered mail.
It is apparent that the reason why the respondent did not receive the notification was not because the Minister failed to do all that was required of him but because the respondent did not keep his mailing address current. Such arrangements as he did make for the receipt of mail during his absence from
Canada between March 1988 and December 1989 broke down—but that, surely, cannot be laid at the feet of the Minister who acted throughout in the man ner required by the Act.
This section 28 [Federal Court Act, R.S.C., 1985, c. F-7] application will be allowed, the order of the Tax Court of Canada dated June 13, 1990 will be set aside and the matter will be referred back to that Court for redetermination on the basis that the respondent's application to extend the time for filing a notice of appeal shall be dismissed for lack of juris diction to grant the relief sought.
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