BETWEEN:
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on October 16, 2006.
Judgment delivered from the Bench at Toronto, Ontario, on October 16, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: NADON J.A.
Docket: A-553-05
Citation: 2006 FCA 330
CORAM: LINDEN J.A.
NADON J.A.
MALONE J.A.
BETWEEN:
PRASAD V. ADUVALA
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 16, 2006)
[1] This is an appeal from a decision of Campbell J. of the Tax Court of Canada dated October 24, 2005 which dismissed the appellant’s notice of appeal for taxation years 1990, 1991 and 1992 on the ground that it was filed beyond the statutory time for commencing an appeal before the Tax Court and beyond the time prescribed for obtaining an extension of time to commence an appeal.
[2] In concluding as she did, the Tax Court judge considered the relevant sections of the Income Tax Act, namely subsection 165(3) which requires the Minister to notify a taxpayer in writing of his decision upon review of a notice of objection, subsection 169(1) which requires a taxpayer to file an appeal with the Tax Court within 90 days of the Minister’s mailing of the notice of confirmation and subsection 167(5) which allows a taxpayer to apply, within one year after the expiry of the 90 day period prescribed by subsection 169(1), for an extension of time for the filing of a notice of appeal.
[3] A review of the evidence before her led the Tax Court judge to the conclusion that the Minister had no doubt complied with the requirements of subsection 165(3) and that as a result, the time prescribed under subsection 169(1) and 167(5) started to run as of October 5, 2001, when the Minister had sent the notice of confirmation to the appellant, by registered mail.
[4] We note that in concluding that the Minister had complied within the requirements of subsection 165(3) the judge considered the appellant’s argument that he had not received the Minister’s letter of October 5, 2001 by reason of the fact that he did not, at the time, have a fixed address until December 1, 2001.
[5] Since the appellant’s Notice of Appeal was filed on April 18, 2005, more than two years after the limitation periods provided under the Act had expired, the Tax Court judge allowed the respondent’s motion and dismissed the appellant’s Notice of Appeal.
[6] We also note that the judge considered the appellant’s argument that he was misled by post October 5, 2001 correspondence received from the Minister. Although the judge could not agree that the appellant had been misled, she found that in any event the appellant was clearly aware of the Minister’s Notice of Confirmation by early 2003 and that he had not filed an appeal before April 7, 2005.
[7] We have not been persuaded that in so concluding Campbell J. made any reviewable error. We feel compelled to add that on the basis of the evidence before her, the applicable law and the relevant jurisprudence, it is difficult to see how the Tax Court judge could have come to a different conclusion.
[8] Accordingly, the appeal will be dismissed with costs.
EDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-553-05
(APPEAL FROM A JUDGMENT OF CAMPBELL J., TAX COURT OF CANADA
DATED OCTOBER 24, 2005, DOCKET NO. 2005-1300(IT))
STYLE OF CAUSE: Prasad V. Aduvala v.
Her Majesty the Queen
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: October 16, 2006
REASONS FOR JUDGMENT OF THE COURT BY: Linden, Nadon & Malone JJ.A.
DELIVERED FROM THE BENCH BY: Nadon J.A.
APPEARANCES:
|
FOR THE APPELLANT
|
|
|
Nimanthika Kaneira |
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
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Carrying Place, Ontario
|
FOR THE APPELLANT
|
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Deputy Attorney General of Canada Toronto, Ontario |
FOR THE RESPONDENT
|