Persaud v. R. – TCC: Court Has No Jurisdiction to Grant Declaratory Relief

Bill Innes on Current Tax Cases New Window

Persaud v. The Queen[1] (December 13, 2013) is an unusual procedural case.  In the first place, rather than asking for relief against a reassessment, the appellant (who was self-represented) was asking for a form of declaratory relief:

[1]             This matter concerns an application by Stephen Persaud which requests the following relief:

Please use your good office and assist me getting my 2007 objection to be on file.

[2]             Upon review of the application, it appears that Mr. Persaud is seeking confirmation that he had filed a valid notice of objection within the time prescribed. The relevant excerpt from the application is reproduced below.

I filed two objections. In September 2010. One of the objection was for the year 2006 and the other was for the year 2007. Both objections were sent to the Markham Office On September 2010 revenue Canada stated that they only received 2006 objection but not the 2007 objection. I did not resend a new objection for 2007 because I had already objections for both years. Many calls were made to Revenue Canada to explain that I had already send my 2007 objection.

The background concerned the disallowance of a charitable deduction in respect of his 2007 taxation year:

[5]             By letter dated September 15, 2010, the Canada Revenue Agency (CRA) informed Mr. Persaud that they had completed an audit of his claim for a charitable gift to the Global Learning Gifting Initiative 2007. Mr. Persaud was informed that no amount would be allowed as a charitable gift.

[6]             Mr. Persaud testified that on receipt of this letter, he decided to file a similar notice of objection that he had filed for the immediately preceding taxation year and which also involved the disallowance of a charitable donation. The objection for the 2007 taxation year was dated September 30, 2010 and was sent by ordinary mail around that time. A copy of the notice of objection was attached to Mr. Persaud’s application to this Court.

[7]             Although the notice of objection references a reassessment dated September 15, 2010, this is the date of the CRA letter and not the date of the notice of reassessment. The notice of reassessment was issued a few months later on January 24, 2011.

In a rather solomonic decision the court dismissed the appeal on the basis of lack of jurisdiction but proffered its opinion that the September 30, 2010 objection was valid and expressed the hope that CRA would accept it as such:

[15]        Where does that leave us? I would conclude as follows:

1.       The notice of objection dated September 30, 2010 is, in my view, a validly-served notice of objection to the reassessment that was subsequently issued by notice dated January 24, 2011.

2.       It is not possible for this Court to grant the declaratory relief that Mr. Persaud seeks. Since this Court has no authority to declare the notice of objection valid, I must dismiss Mr. Persaud’s application.

3.       Although Mr. Persaud does not seek an application to extend time, I would comment that there is no basis to grant an extension of time on the facts of this case.

[16]        In the result, an order will be issued which dismisses Mr. Persaud’s application. However, I would hope that the CRA will recognize the document mailed on September 30, 2010 as a notice of objection to the reassessment issued by notice dated January 24, 2011.

[1] 2013 TCC 405.