http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/109835/index.do
Désir v. The Queen (May 19, 2015 – 2015 TCC 126, Tardif J.).
Précis: The taxpayer failed to file a GST notice of objection in a timely manner. He filed an application with the Minister for an extension of the time to file his notice of objection. That application was filed within the statutory time limits. The Minister refused his application and advised the taxpayer that he had 30 days to file an application in the Tax Court to extend the time to file a notice of objection. The taxpayer again attempted to file an extension application with the Minister which was again rejected. The taxpayer filed an extension application in the Tax Court roughly 8 months after the Minister’s initial refusal of his application.
The Crown contended that the Tax Court was without jurisdiction to grant the application. The Court agreed and dismissed the application but commented that the timing provision was very short and should be revisited by Parliament.
Decision: The taxpayer’s application to the Tax Court to extend the time to file a GST notice of objection was roughly 7 months late:
[2] On March 12, 2012, the Minister sent a notice of reassessment to the applicant based on the E.T.A. The conformity and quality of the notice was not challenged.
[3] On January 1, 2013, the applicant made an application for an extension of time. The applicant attached to his application a notice of objection together with documentation supporting his objection.
[4] On November 14, 2013, the Minister refused the application for an extension of time. Consequently, he sent a notice to the applicant, informing him that his application had been refused. In the notice, the Minister indicated to the applicant that he would have 30 days to ask the Tax Court of Canada to reconsider that decision. In other words, the application was refused because it was out of time.
[5] On April 15, 2014, the applicant sent a letter to the Minister in which he admitted that he had been late submitting a notice of objection. Once again, he attached his notice of objection and supporting documentation.
[6] On June 2, 2014, the Minister again responded, indicating to the applicant that he had exceeded the 30-day time limit for appealing to the Tax Court of Canada.
[7] On July 9, 2014, the applicant filed an application for an extension of time with this Court.
The Court held it had no jurisdiction to allow the application:
[22] However, subsection 304(1) in fine of the E.T.A. requires that an appeal from the Minister’s decision be filed within 30 days from the day the notice of decision has been mailed. In other words, this provision gave the applicant until December 16, 2013, to appeal to the Tax Court of Canada. However, by filing his appeal on July 9, 2014, he did so 205 days later.
[23] The applicant therefore missed this time limit.
[24] The Minister is of the view that this is a strict time limit. He relies, in particular, on two decisions, 9848-3173 Québec Inc. v. The Queen, 2003 TCC 217, and Maman v. The Queen, 2007 TCC 429, in which the Court clearly explained that subsection 304(1) in fine of the E.T.A. does not give decision-makers any discretion to deviate from the time limit of 30 days.
[25] I would add to those decisions Bellemare v. The Queen, 2013 TCC 381, in which Justice Boyle mentioned, at paragraph 7 of his decision, that “the thirty-day period, along with the one-year-and-90-day period, is fixed by law and this Court has no jurisdiction not to apply it on grounds of equity, fairness or otherwise.”
In light of the perceived imbalance in timing requirements as between the taxpayer and the Minister the Court suggested that Parliament revisit the 30 day limitation for applying to the Tax Court:
[35] The due diligence required of the taxpayer is disproportionately more demanding than that of the Minister, as the Minister can respond whenever he sees fit.
[36] This situation is made even more complex by the other time limits in the E.T.A. Indeed, both subsection 301(1.1) and section 306 in fine of the E.T.A. require a time limit of 90 days to object and appeal. Therefore, the taxpayer must be able to distinguish this time limit from the others.
[37] Furthermore, section 93.1.5 of the Tax Administration Act (the T.A.A.), the corollary to section 304(1) of the E.T.A. in QST matters, allows taxpayers to appeal the Minister’s decision within 90 days after the day of mailing of the notice of his decision.
[38] A taxpayer therefore has more time to appeal to Court of Québec than to the Tax Court of Canada, which I find is fundamentally incoherent.
[39] Parliament should revisit the time limit of 30 days provided for in subsection 304(1) in fine of the E.T.A. In the case at bar, I cannot usurp the role of Parliament. I must follow the letter of the Act and the various decisions that have validated the rigour of the prescribed time limit.
In the result the application was dismissed.