http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/100767/index.do
Rossi v. The Queen (January 26, 2015 – 2015 TCC 20, D’Auray J.).
Précis: Mr. Rossi was reassessed for 2003 in 2006; he filed a notice of objection in a timely manner. In 2010 CRA confirmed the 2003 reassessment by letter sent to Mr. Rossi by registered mail with a copy by first class mail to his accountant. When the letter sent to Mr. Rossi was returned to CRA unclaimed, it sent the letter to Mr. Rossi again, this time by first class mail, also in 2010. Mr. Rossi and his accountant claimed that in reviewing his account with CRA it was not clear that the 2003 reassessment had been confirmed. In 2014 Mr. Rossi filed a notice of appeal in the Tax Court and CRA moved to have it dismissed.
The Court dismissed the appeal. Although the Court had some sympathy for the possible confusion generated by Mr. Rossi’s account status with CRA, the Income Tax Act simply did not permit the filing of a notice of appeal more than four years after a reassessment had been confirmed.
Decision: The facts were not complex:
[5] On October 17, 2006, the appellant was reassessed with respect to his 2003 taxation year.
[6] The appellant filed a notice of objection with regard to the reassessment of October 17, 2006.
[7] On June 17, 2010, the Minister sent the appellant, by registered mail, a notice of confirmation of the reassessment for the 2003 taxation year.
[8] The Notice of Confirmation was sent to the address that the appellant had provided to the Minister, namely, 743 D Rue Principale, Saint-Sauveur, Quebec J0R 1R0.
[9] The same day, June 17, 2010, the Minister also sent a copy of the Notice of Confirmation by first class mail to the appellant’s accountant, James Bagiotas.
[10] On July 3, 2010, Canada Post returned the registered mail to the CRA as unclaimed by the appellant.
[11] On July 12, 2010, the Minister sent the Notice of Confirmation for the 2003 taxation year to the appellant again, this time by first class mail, also to the address that the appellant had provided: 743 D Rue Principale, Saint-Sauveur, Quebec J0R 1R0.
[12] On September 3, 2014, the appellant filed a notice of appeal with this Court with regard to the Notice of Confirmation dated June 17, 2010.
The Court held the notice of appeal was clearly filed late:
[43] The evidence demonstrated that the Notice of Confirmation was sent in writing on June 17, 2010, to the appellant’s address at 743 D Rue Principale, Saint-Sauveur, Quebec, J0R 1R0. It was sent by registered mail as evidenced by the mailing envelope attached to the affidavit as Exhibit R-1. In her testimony, Ms. Faubert described the procedure for sending registered mail. She noted that the Notice of Confirmation was sent to the appellant’s correct address. Ms. Faubert mentioned that she had verified that it was the appellant’s authorized address entered in the CRA’s files. She also said that it was the address on the appellant’s Notice of Objection for the 2003 taxation year. That was also the address used to send the reassessment for the 2002 taxation year.
[44] Although there was insufficient evidence to establish the second mailing, by first class mail, of the Notice of Confirmation, the evidence still shows that Ms. Faubert did take action with respect to the Notice of Confirmation that was returned to her. Moreover, proof of the second mailing, by first class mail, is not required for a ruling on this motion.
[45] Four years passed between the CRA’s mailing of the Notice of Confirmation by registered mail on June 17, 2010 and the filing of the Notice of Appeal with this Court on September 3, 2014. Thus, it is clear that the time limit for filing an appeal with this Court of 90 days from the day the Notice of Confirmation was sent, prescribed in subsection 169(1) of the Act, was not respected.
While the Court had some sympathy about the possible confusion on the part of Mr. Rossi and his accountant it was required to dismiss the appeal:
[49] The appellant, contrary to what he claims, was not unable to act. Under paragraph 169(1)(b) of the Act, a taxpayer may appeal to this Court after 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that the Minister has vacated or confirmed the assessment or reassessed.
[50] It is my view that despite the confusion caused by the CRA’s statements of account in this file, the fact remains that the Minister discharged his duty to give the taxpayer notice in writing. I have found no legal grounds for dismissing the respondent’s motion. As mentioned by counsel for the respondent, this is therefore a case in which the appellant could apply to the CRA for relief in the form of the waiver of interest and penalties.
There was no order as to costs.