Beima v. R. - FCA: GST appeal struck, no underlying notices of objection
http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/169401/index.do
Beima v. Canada (August 17, 2016 – 2016 FCA 205, Pelletier, Webb (author), de Montigny JJ.A.).
Précis: Mr. Beima was a sole proprietor. He was assessed for GST for three reporting periods.
|
Reporting Periods
|
Date of Assessment |
| January 1, 2006 to December 31, 2008 |
May 31, 2010 |
| January 1, 2009 to December 31, 2009 |
September 8, 2010 |
| January 1, 2010 to December 31, 2011 |
January 18, 2013 |
He did not object to any of the assessments in a timely fashion. Subsequently he applied for and was granted an extension to file a notice of objection for the last of the three periods. He filed returns for each of the three periods and was reassessed for each period. He then filed a notice of appeal in the Tax Court in respect of each period. The Crown moved successfully in the Tax Court to strike the notice of appeal in respect of the first two periods where no notice of objection had ever been filed.
The Federal Court of Appeal dismissed the appeal with costs fixed at $1,500.
Decision: This was simply a case of failing to meet a statutory pre-condition to the filing of a notice of appeal:
[13] Subsection 12(1) of the Tax Court of Canada Act, R.S.C., 1985, c. T-2, provides that the Tax Court of Canada has the jurisdiction to hear and determine appeals under the Act. However, the appeal must be an appeal that is made in accordance with the provisions of the Act. Section 306 of the Act provides that a “person who has filed a notice of objection to an assessment under this Subdivision may appeal to the Tax Court to have the assessment vacated or a reassessment made…”. Therefore, before a person can file an appeal to the Tax Court of Canada, the person must first have filed a notice of objection to the assessment in issue. Failing to file a notice of objection to a particular assessment will result in the person not having the right to appeal that assessment to the Tax Court of Canada. Since Mr. Beima did not file a notice of objection in relation to the assessments issued on September 3, 2013, he did not have the right to file a notice of appeal in relation to these assessments for the reporting periods between January 1, 2006 and December 31, 2009 and from January 1, 2012 to December 31, 2012.
[14] Mr. Beima referred to subsection 305(1) of the Act which allows a person to apply for an extension of time to file an appeal to the Tax Court of Canada. However, the concern in this matter is not that he was late in filing his notice of appeal but rather that he was premature because he had not satisfied the condition precedent that would have entitled him to file the notice of appeal. Since Mr. Beima had not filed a notice of objection to the assessments issued on September 3, 2013, the time period within which an appeal could have been filed under section 306 of the Act had not commenced. An extension of time is not available if the time period has not commenced.
The Federal Court of Appeal dismissed the appeal with costs fixed at $1,500.