Pylatuke v. R. – TCC: Court Permits Taxpayer to Extend Time to File a Notice of Appeal

Bill Innes on Current Tax Cases

Pylatuke v. The Queen[1] (November 21, 2013) involved conflicting motions with the Crown moving to strike the taxpayer’s Notice of Appeal and the taxpayer moving to extend the time within which he would be allowed to file a Notice of Appeal:

[1]             The Respondent has brought a motion to quash the appellant’s 2006 income tax appeal as having been instituted by filing his notice of appeal with the Court after the expiry of the time allowed for filing an appeal pursuant to subsection 169(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended (the “Act”).

[2]             The Respondent alleged that:

(a)     no request for extending the time for filing an appeal was made pursuant to subsection 167(1) of the Act;

(b)     the time within which an application to extend the time for filing an appeal in this proceeding has expired; and

(c)      a condition precedent to instituting a valid appeal has not been met.

The chronology was a bit complex:

[5]             Based on the supplementary Respondent’s submissions, the chronology of events in this matter is as follows:

(a)     the Appellant was reassessed in respect of his 2006 taxation year on June 11, 2009;

(b)     the Appellant filed an objection which was dated September 9, 2009 and received by the Minister on September 17, 2009;

(c)      the objection was filed late but deemed by the Minister to have been received on February 4, 2010;

(d)     the Appellant was subsequently reassessed a second time by notice of reassessment dated January 19, 2012;

(e)      a letter explaining the decision giving rise to the notice of reassessment of January 19, 2012 (the “Reassessment”) was sent to the Appellant personally and carbon-copied to the Appellant’s lawyer, on January 19, 2012;

(f)      the notice of appeal was filed on April 30, 2012;

(g)     90 days from January 19, 2012 is April 18, 2012;

(h)     one year from April 18, 2012 is April 18, 2013;

(i)      no application to extend the time to file the notice of appeal was made prior to April 18, 2013;

(j)      the reply was filed on September 28, 2012.

The court concluded that the taxpayer’s motion to extend the time to file a Notice of Appeal was not out of time because it was not persuaded that the January 19, 2012 reassessment was mailed to the taxpayer and his lawyer:

[16]        From the evidence before me, I am satisfied that the 2006 reassessment was issued on January 19, 2012. However, the record does not satisfy me that it was mailed to the Appellant and to the Appellant’s lawyer. The Respondent would have to bring more specific evidence of having mailed the said reassessment, particularly when it was sent by registered mail.

[17]        The fact that the Appellant became aware of the 2006 reassessment when he received on March 2, 2012, a statement of account dated February 27, 2012, showing that a 2006 reassessment was issued on February 19, 2012 and that he did not take any steps to obtain a copy of the said reassessment, does not have the effect of validating the reassessment.

[18]        In the circumstances, I will dismiss the Respondent’s motion and will allow the Appellant’s motion for an extension of time to file an appeal for the 2006 taxation year. The notice of appeal filed on April 30, 2012 is deemed to be a valid notice of appeal instituted on the date of this Order. The matters raised in the 2006 reassessment shall then be heard on their merits. Considering my decision on the first issue of the Respondent’s motion, it is not necessary for me to deal with the other issues therein. Each party shall bear its own costs.

[1] 2013 TCC 364.