Azzopardi v. R. - TCC: Extension applications a comedy of errors

Azzopardi v. R. - TCC:  Extension applications a comedy of errors

Azzupardi v. The Queen (September 12, 2016 – 2016 TCC 194, Bocock J.).

Précis:   The Azzopardi brothers, Thomas and Emmanuel, were limited partners of the same partnership.  They applied to extend the time to file individual notices of appeal or notices of objection for a variety of taxation years.  The Crown consented to most of the applications but did not consent to Emmanuel’s application in respect of 2002 because it was a nil assessment.  In the case of Thomas’ application for 2011 and 2012 the Crown pointed out that the Court was without jurisdiction because Thomas had failed to apply within the period during which the Court had jurisdiction to grant relief.  There were no orders as to costs.

Decision:   Emmanuel’s application failed because he was seeking to appeal a nil assessment:

[32]        The Court, having undertaken a path to learn the Minister’s position regarding the purported loss determination request finds itself no further ahead. Emmanuel is resolute he is entitled to a loss determination. The Minister refuses to give one because she indicates such a request has not been properly made. The Court is not prepared to delay its decision in these applications further and will decide Emmanuel’s based upon the 2002 assessment before it.

[33]        Perhaps Emmanuel may re-submit his loss determination request, hopefully in a format and referencing claimed losses sufficient to evoke a definitive answer from the Minister, failing which his remedy to compel such a determination will lay elsewhere. At present, the nub of the issue is that the Minister asserts she can discern no difference on record between the quantum of loss deducted by Emmanuel in his 2002 return and that allowed by the Minister on the “as filed” assessment. Simply put, there appears to be no difference between Emmanuel’s filing position and the Minister’s 2002 assessment relating to the loss claimed. Such a difference is the sine qua non and object of any tax dispute.

[34]        On that basis, the determination of this 2002 application to extend the time to file a notice of appeal is premature. There has been no discernable loss determination to date which constitutes a dispute. At present, since only a no tax payable or “Nil assessment” exists, no appeal lies to this Court: Babich v HMQ, 2010 TCC 352, upheld by the Federal Court of Appeal, supra, at paragraph 9. On that basis the application for extension of Emmanuel’s 2002 taxation year is dismissed.

Thomas was simply out of time:

[25]        It was not until October 22, 2014 that Thomas filed an application to extend the time to file a Notice of Appeal for both 2011 and 2012. No application to extend the time to file a notice of objection for 2012 has ever been filed. Again, the critical dates were September 19, 2014 for 2011 (appeal) and April 30, 2015 (objection) for 2012.

[26]         Moreover, the absence of focus on the part of Thomas and his various agents has continued and is further relevant to 2012. The Respondent’s Reply dated January 7, 2015 (dated almost 4 months before the one year grace period for the 2012 application to extend the time for a notice of objection would expire) provided additional warning. In paragraph 24 of the Reply, it provides that the Applicant had until April 30, 2015 to apply for extension to file a notice of objection. The Applicant failed to note this or, in any event, heed it. Thomas also requested two adjournments which were granted by the Court, the last on April 27, 2015 with three days left to file. Notwithstanding all these potential reminders, no request to amend the 2012 application was made by Thomas and, accordingly, no such order was granted during a period while there was jurisdiction for this Court to do so.

[27]        Factually, making some effort, however unfocussed, ill-addressed or malformed may have still allowed a cleft which the Court could grasp. On the other hand, reaching the conclusion that such effort and time would be wasted (as was the case with Thomas’ agent) and not filing such a simple and formulaic notice, subsequent application or amendment provides not such rung. The absence of some such filing robs this Court of jurisdiction under subsection 167(5) and 169(1) and is fatal.

There were no orders as to costs.