http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/181677/index.do#
http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/181678/index.do#
Mockler v. The Queen (October 18, 2016 – 2016 TCC 240 & 241, V. Miller J.).
Précis: Mr. Mockler was entitled to a disability tax credit since 2007. In 2015 he applied to the Minister to re-examine the application date and in 2016 he was advised that it would be extended back to 2005. In September of 2016 he applied to the Tax Court for an extension of the time to file Notices of Objection for the period from 1997 to 2008. A companion application was made on behalf of his wife. The Court construed the applications as applying only to the period from 1997 to 2004. Both applications were dismissed because they had not been made within one year of the date of expiration of the period for filing a notice of objection for the years in question. There was no order as to costs.
Decision: Mr. Mockler and his wife were simply caught by the strict limitation period for extension applications:
[10] The time limits for Mr. Mockler’s 1997 to 2004 taxation years are:
|
1997
|
December 6, 1999
|
March 5, 2000
|
March 5, 2001
|
|
1998
|
December 29, 1999
|
April 30, 2000
|
April 30, 2001
|
|
1999
|
October 12, 2010
|
January 10, 2011
|
January 10, 2012
|
|
2000
|
February 22, 2002
|
May 23, 2002
|
May 23, 2003
|
|
2001
|
April 11, 2002
|
April 30, 2003
|
April 30, 2004
|
|
2002
|
March 31, 2003
|
April 30, 2004
|
April 30, 2005
|
|
2003
|
December 29, 2004
|
April 30, 2005
|
April 30, 2006
|
[11] The relevant provisions of the ITA are sections 165 and 166.2. They provide:
165 (1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing, setting out the reasons for the objection and all relevant facts,
• (a) if the assessment is in respect of the taxpayer for a taxation year and the taxpayer is an individual (other than a trust) or a graduated rate estate for the year, on or before the later of
(i) the day that is one year after the taxpayer’s filing-due date for the year, and
o (ii) the day that is 90 days after the day of sending of the notice of assessment; and
• (b) in any other case, on or before the day that is 90 days after the day of sending of the notice of assessment.
166.2 (1) A taxpayer who has made an application under subsection 166.1 may apply to the Tax Court of Canada to have the application granted after either
• (a) the Minister has refused the application, or
• (b) 90 days have elapsed after service of the application under subsection 166.1(1) and the Minister has not notified the taxpayer of the Minister’s decision,
but no application under this section may be made after the expiration of 90 days after the day on which notification of the decision was mailed to the taxpayer.
When application to be granted
(5) No application shall be granted under this section unless
• (a) the application was made under subsection 166.1(1) within one year after the expiration of the time otherwise limited by this Act for serving a notice of objection or making a request, as the case may be;
[12] Together these provisions provide that no application for extension of time can be granted unless the application is made within one year of the time limit for serving a notice of objection. The time limits in the ITA are strict and this Court cannot alter them. This was confirmed by the Federal Court of Appeal in Canada v Carlson, 2002 FCA 145 where Nadon, J.A. stated:
As this Court has held on numerous occasions, when a taxpayer is unable to meet the deadline prescribed by the Act, even by reason of a failure of the postal system, neither the Minister nor the TCC can come to his help. (See Schafer v. R., [2000] F.C.J. No. 1480 (Fed. C.A.) ; Bowen v. Minister of National Revenue (1991), [1992] 1 F.C. 311 (Fed. C.A.) ). Hence, if a postal failure cannot save a taxpayer, he will not be saved by his failure to grasp the significance of a notice of assessment served on him.
Both applications were dismissed. There was no order as to costs.