Delmer E Taylor:—This is the decision in the matter of the application of Domenic Mirotta to the Tax Review Board for an order, pursuant to the provisions of subsection 167(1) of the Income Tax Act, SC 1970-71-72, c 63, as amended, to extend the time within which a notice of objection to an income tax assessment for the year 1974 could be served on the Minister of National Revenue: Section 165 of the Act provides a taxpayer with a period of 90 days from the date of mailing of the notice of assessment in which to serve on the Minister a notice of objection in the prescribed form.
At the hearing, the taxpayer represented himself. The notice of objection which the Minister of National Revenue was not prepared to accept without an order from the Board was dated January 18, 1978 and related to an assessment dated March 1, 1977. The specific matter at issue was a penalty of $805.72 imposed by the Minister under subsection 163(2) of the Act, not the income tax assessment itself. The reason advanced by Mr Mirotta for the delay was the difficulty his new accountant (Bryon H Bates of Frank J Jaglowitz, chartered accountant, Cambridge, Ontario) had experienced in obtaining information from the former accountants (MacGillivray & Co, chartered accountants, Port Colborne, Ontario) in order to file the objection.
Mr Mirotta’s application to the Tax Review Board reads as follows:
APPLICATION TO REVIEW BOARD FOR THE EXTENSION
FOR FILING NOTICE OF OBJECTION
Domenic Mirotta — SIN 436-251-185
The notice of objection was not filed for the above taxpayer within the prescribed 90 day period for the following reasons:
1. We became accountants for Mr Mirotta on October 21st, 1976, (I have enclosed a letter to the previous accountants on that day which is marked Exhibit ‘A’).* At this time, we were not aware that Mr Mirotta was having some problems with his 1974/1975 personal income tax returns.
2. Mr Mirotta received notices of reassessment for 1974 and 1975, dated March 1st, 1977 and brought them to my office for discussion. On April 1st, 1977 I sent a letter to the previous accountant requesting information regarding the information and correspondence that he had had with the local tax department of National Revenue regarding the assessments (copy of letter enclosed and marked Exhibit ‘B’).*
3. I did not hear from the previous accountants and on May 19th, 1977 I wrote a subsequent letter requesting information so that I could: have something to file the required notice of objection (copy enclosed and marked Exhibit ‘C’).* [1]
4. After numerous telephone calls to the previous accountants which I received no information from, I finally suggested that Mr Mirotta try to contact him directly to attempt to obtain the information required to file the notice of objection.
5. To date, we have still not received satisfaction from the previous accountants but we have obtained a letter written from him to the tax department regarding the notice of assessment indicating that the error was an oversight on the part of the accountants and not the taxpayer.
It is therefore, felt that an extension of time is applicable in this case for filing the notice of objection and your consideration would be appreciated at this time.
Yours very truly,
(Sgd) B H Bates
BRYON H BATES
(Sgd) Domenic Mirotta
BHB/sl DOMENIC MIROTTA
I make reference to a recent decision of this Board, James W Elliott and MNR, [1978] CTC 2919 an application similar in nature to this one. The comments therein hold for this matter to the degree that the Board finds no merit in the explanation provided by Mr Bates for the delay. The notice of objection might have been filed in any event to protect the rights of the taxpayer. I would dismiss this application but for the fact that it deals with the imposition of a penalty under section 163 of the Act. The taxpayer therefore will be afforded an opportunity to present his case. The application is allowed.
Application allowed.
(Board’s note — Exhibits not reproduced)