Sahibi v R. – TCC: Applications to file GST/HST objections dismissed as outside one year and 90 day limitation

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/67219/index.do New Window

Sahibi v. The Queen[1] (March 11, 2013) was an application to extend the time to file GST/HST objections:

[1]             This is an application for an Order for an extension of time to object to reassessments made under the Excise Tax Act (the “Act”). This application is made pursuant to section 304 of the Act from the decision by the Minister of National Revenue (the “Minister”) refusing to grant the applicant an extension of the time to file notices of objection.

[2]             The notices of reassessment were made on March 9, 2011 and April 12, 2011 for the reporting periods from January 1, 2006 to December 31, 2006, and from January 1, 2007 to December 31, 2007, respectively (“2006” and “2007” and collectively the “Periods”).

[3]             The applicant admitted that he did not file notices of objection (“Objections”) to the reassessments for the Periods within the ninety days stipulated in subsection 301(1.1) of the Act.

[4]             The applicant made an application to the Minister to extend the time for filing the Objections. The application is dated July 23, 2012, and was received by the Minister on July 25, 2012.

The taxpayer testified that he had in fact filed another application with the Minister a few weeks prior to July 23, 2012 and therefore he had made an application within the one year and 90 day period provided by the Act.  The court rejected his evidence:

[22]        With respect to 2007 (the one year and ninety-day time limit having expired on July 10, 2012), for the reasons that follow I have difficulty with the reliability of the applicant’s evidence as it relates to sending the Form. Other than his statement during his testimony that the Form was filed with the CRA, the applicant provided no documentary evidence to corroborate his testimony such as providing a copy of the Form. That alone would not have been fatal to the application.

[23]        However, that in tandem with the following factors leads me to conclude that no Form was sent within the one year and ninety-day time limit based on the evidence. During his testimony he estimated, as previously noted, when he thought he sent the Form but then went on to say he was unsure. In completing the Form, he said he made a very brief statement expressing a mere intention to object without providing any reasons. He also said that he had tried to hire accountants, but in his July 23, 2012 application he stated he was unable to hire a tax lawyer. The applicant failed to identify in the July 23, 2012 application to the Minister, and the subsequent application to the Court, any reference to having previously sent the Form to the CRA. I note that it appears to have taken the applicant a considerable period of time to bring the application to this Court after the Minister made his decision. One would have expected the applicant to have taken a less casual approach to his affairs than he took as illustrated in the various matters outlined.

[24]        I find that the evidence in the affidavit of Ms. Chui [of CRA who testified that no other application had been received] to be more reliable and prefer her evidence over the applicant’s. I therefore find that the July 23, 2012 application was the only application filed with respect to the Periods, which was made beyond the one year and ninety-day time limit stipulated in paragraph 303(7)(a) of the Act. Therefore, no application could have been granted by the Minister nor can be granted by this Court under section 304.

Accordingly the taxpayer’s application was dismissed.[2]

[1] 2014 TCC 79.

[2] The court also found that the taxpayer was late in bringing his application to the Tax Court:

[28]        My finding is as stated above. However, I observe that it appears that the Court would have no jurisdiction, in any event, because the applicant also failed to bring the application to the Court (filed on August 29, 2013), within the thirty days after the Minister made his decision (on August 24, 2012) as required by subsection 304(1) of the Act. This is apparent from a copy of the registered letter, dated August 24, 2012, sent to the applicant by the Minister, and is attached to the application the applicant filed with the Court; the decision is also referenced in a letter from the CRA, dated May 9, 2013, to the applicant that was filed as evidence at the hearing. This point was not argued at the hearing.