Date: 20040922
Docket: A-488-03
Citation: 2004 FCA 315
CORAM: LINDEN J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
BRENT GLYNN MCCLELLAND
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Calgary, Alberta, on September 22, 2004.
Judgment delivered from the Bench at Calgary, Alberta, on September 22, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
[1] This is an appeal from a decision of the Tax Court of Canada which quashed the Notice of Appeal filed with that Court on the basis that the Appellant had failed to serve Notice of Objection on the Minister within the time limits prescribed by Section 165(1) of the Income Tax Act ("ITA") and that the Appellant had instituted an appeal outside the time requirement of Section 169(1) of the Income Tax Act.
[2] The Appellant did not file tax returns for the years 1998, 1999, and 2000 and the Minister assessed him pursuant to Section 152(7) of the Income Tax Act.
[3] The Tax Court Judge found that the Minister had met the burden of proving the existence of the Notice of Assessment and the date of mailing by filing an Affidavit attesting to the method of reconstruction of the Notice of Assessment and the mailing thereof, from the CCRA computer system. The Appellant did not cross-examine on this Affidavit.
[4] The Appellant took the position before the Tax Court Judge that he had never received the Notice of Assessment. However, it is sufficient if CCRA proves that the Notice of Assessment was sent. It need not be proven that the Notice was received. The Queen v. Schafer [2000] DTC 6542.
[5] The Tax Court Judge further found that no valid Notice of Objection had been filed by the Appellant. It had been the Appellant's position that a letter sent by him to a Collection Enforcement Officer relating to his tax arrears for 1988 and subsequent years constituted a valid Notice of Objection for different tax years namely, 1998, 1999, 2000. The Income Tax Act required that a Notice of Objection must be sent to the Chief of Appeals. Therefore a letter sent to the Collection Enforcement Officer would not suffice.
[6] The Tax Court Judge further found that when the Appellant eventually did send a letter to the Chief of Appeals, it was beyond the time prescribed by the Income Tax Act.
[7] We are of the view that there was evidence before the Tax Court Judge which allowed him to make the findings which he did and that he did not err in striking out the appeal.
[8] The appeal will be therefore dismissed with costs.
"J. Edgar Sexton"
J. A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-488-03
STYLE OF CAUSE: Brent Glynn McClelland v. Her Majesty the Queen
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: September 22, 2004
REASONS FOR JUDGMENT OF THE COURT : Linden, Nadon and Sexton JJ.A
DELIVERED FROM THE BENCH BY: Sexton J.A.
DATED: September 22, 2004
APPEARANCES:
Mr. Brent McClelland FOR THE APPELLANT
Ms. Margaret McCabe FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. Brent McClelland
Calgary, Alberta FOR THE APPELLANT
Morris A. Rosenberg
Deputy Attorney General of Canada FOR THE RESPONDENT
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