Tremblay, T.C.J.:— This application for extension of time was heard on August 23, 1985 in the city of Toronto, Ontario.
1. The Point at Issue
This issue is whether the applicant is correct in requesting an order extending the time within which a notice of objection may be served. The applicant contends he made an error in instituting an appeal concerning the assessment of the year 1982 rather than 1983 and then he had to file a notice of objection for 1982.
2. The Burden of Proof
The burden of proving the facts of the request rests on the applicant’s shoulders. The applicant has to give a reasonable explanation for not filing the notice of objection on time and in addition, must prove that the application was brought as soon as circumstances permitted it to be brought. Moreover, the applicant must prove that there are reasonable grounds for objecting to the assessment (subsection 167(5) of the Act).
3. The Facts
3.01 A notice of assessment with respect to the applicant’s 1983 taxation year was mailed to the applicant on August 27, 1984.
3.02 A notice of objection to the said assessment was served on July 26, 1985.
3.03 The application to extend time to file the notice of objection reads as follows:
REASONS:
1. Attached is the notice of assessment for 1983 dated August 27, 1984.
2. On September 12, 1984 an appeal to the Tax Court was made concerning the taxpayer's 1982 tax return, appeal #84 1930(IT). On December 14, 1984 a Reply to Notice of Appeal was issued in which the Minister of National Revenue submitted, among other things, that the “‘loss if any, was not suffered by the Appellant (Aspinall) in his 1982 taxation, but, did not occur until his resignation in 1983.”
It was not clear until December 14, 1984 that the timing of this loss might be an issue in the 1982 appeal and by that time the 90 day period had elapsed.
The evidence given in Court confirms the facts alleged above. The basis of the notice of objection concerns the application of a loss from employment. This loss originates, according to the applicant, from a loss of a right to receive a benefit from the Employee Profit Sharing Plan of Texaco Canada Inc.
4. Law Analysis
4.01 Law
The main provisions of the Income Tax Act (the Act) involved are subsections 167(1) and (5). They read as follows:
167. (1) Where no objection to an assessment under section 165 or appeal to the Tax Court of Canada under section 169 has been made or instituted within the time limited by section 165 or 169, as the case may be, for doing so, an application may be made to the Tax Court of Canada for an order extending the time within which a notice of objection may be served or an appeal instituted and the Court may, if in its opinion the circumstances of the case are such that it would be just and equitable to do so, make an order extending the time for objecting or appealing and may impose such terms as it deems just.
(5) No order shall be made under subsection (1) or (4)
(a) unless the application to extend the time for objecting or appealing is made within one year after the expiration of the time otherwise limited by this Act for objecting to or appealing from the assessment in respect of which the application is made;
(b) if the Tax Court of Canada or Federal Court has previously made an order
extending the time for objecting to or appealing from the assessment; and
(c) unless the Tax Court of Canada or Federal Court is satisfied that,
(i) but for the circumstances mentioned in subsection (1) or (4), as the case may be, an objection or appeal would have been made or taken within the time otherwise limited by this Act for so doing,
(ii) the application was brought as soon as circumstances permitted it to be brought, and
(iii) there are reasonable grounds for objecting to or appealing from the assessment.
4.02 Analysis
4.02.1 No evidence was given but that it was realized in the middle of December 1984 that a possible error was made in objecting and appealing for 1982 rather than for 1983 for the loss of employment of $13,535 (para. 3.03).
The application for extension of time was filed on July 26, 1985, i.e. over seven months after the possible error was realized. It is obvious that the application was not “brought as soon as circumstances permitted it to be brought" as provided in subparagraph 167(5)(c)(ii) quoted above.
4.02.2 Moreover, subparagraph 167(5)(c)(iii) requires that “there are reasonable grounds for objecting to or appealing from the assessment.”
For the reasons given in appeal No. 84-1930(IT) ([1986]/1 C.T.C. 2350), I cannot arrive at the conclusion that this requirement was met.
4.03.3 In my opinion, the circumstances of the case are not such that it would be just and equitable to make an order extending the time for objecting as provided in subsection 167(1) quoted above.
5. Conclusion
The application is dismissed in accordance with the reasons given above.
Application dismissed.