http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/182119/index.do#]
Boroumend v. The Queen (November 8, 2016 – 2016 TCC 256, Graham J.).
Précis: The Crown moved to quash the taxpayer’s appeal of his 2003 and 2004 taxation years on the basis that it was out of time. The taxpayer argued that it was not out of time since he had never received a notice of confirmation of the assessment. While the Court found that CRA’s file was sloppy, it drew a negative inference from several aspects of the taxpayer’s conduct and concluded that he had in fact received the notice of confirmation as alleged by CRA meaning that his appeal was commenced more than 5 years after the time permitted under the Act. Costs were awarded to the Crown.
Decision: Mr. Boroumend’s appeal was the victim of his own conduct which caused the Court to draw a negative inference:
[21] If the above documents and electronic records were all the evidence before me, I would have found that the Minister had failed to prove, on a balance of probabilities, that the Notice of Confirmation was mailed. The above documents and records are evidence that the Appeals Officer prepared the Notice of Confirmation, that he took steps towards mailing it and that the computer system was updated to reflect that intention, but are not proof that the notice was actually mailed.
[22] However, the above documents and records are not the only evidence before me. There are several pieces of evidence that suggest that Mr. Boroumend received a Notice of Confirmation. If Mr. Boroumend received a Notice of Confirmation then it must have been mailed. The following evidence suggests that Mr. Boroumend received a Notice of Confirmation:
a) In October 2011, Mr. Boroumend filed applications for extension of time to appeal his 2003 and 2004 tax years. Both of those applications state that he was seeking an extension of time to appeal a “Notice of Reassessment” dated October 29, 2009. The applications state that his accountant kept telling him that he was going to file a Notice of Appeal but never did. The Notices of Appeal attached to those applications state that “on October 29, 2009 [the Appeals Officer] dismissed the Notices of objection and confirmed the reassessment.”
b) Mr. Boroumend ultimately withdrew his applications for extension. He was represented by counsel at the time. Assuming that October 29, 2009 was, in fact, the date that the Notices of Confirmation were mailed, Mr. Boroumend would have been out of time to apply for an extension of time to appeal. Mr. Boroumend later described counsel as not being able to help him “as time was not on his side”. This description suggests that the reason for withdrawing the applications for extension was that they had been made too late.
c) In October 2014, Mr. Boroumend applied to the Minister under the taxpayer relief provisions for relief in respect of his 2003 and 2004 tax years. He referred to those years as being “reassessed by the CRA on October 29, 2009.”
d) In November 2014, Mr. Boroumend again applied to the Minister under the taxpayer relief provisions for relief in respect of his 2003 and 2004 tax years. He again referred to those years as being “reassessed by the CRA on October 29, 2009.”
[23] A number of the above documents refer to Notices of Reassessment being issued on October 29, 2009 as opposed to a Notice of Confirmation. By contrast, the Notices of Appeal refer to a Notice of Confirmation dated October 29, 2009. There is no evidence to indicate that Mr. Boroumend’s 2003 and 2004 tax years were reassessed on October 29, 2009. I find that the references to reassessments were made in error and were intended to be references to confirmations.
[24] I do not have any evidence from Mr. Boroumend to explain the above statements. Faced with the knowledge that the Crown was going to rely on those statements, Mr. Boroumend chose not to file an affidavit in response to the Crown’s motion. He chose not to state in such an affidavit that he did not receive the Notice of Confirmation. He chose not to explain why it was that he used the October 29, 2009 date in his applications for extension, his Notices of Appeal and his applications for taxpayer relief if not that he had received a Notice of Confirmation bearing that date. He chose not to explain why he withdrew his applications for extension if not because he had realized that he was out of time to make them. In the circumstances, I draw an adverse inference from his failure to introduce this evidence.
[Footnotes omitted]
Accordingly the motion to quash was allowed. Costs were awarded to the Crown.