BETWEEN:
and
____________________________________________________________________
Application heard on November 28, 2008 at Calgary, Alberta
By: The Honourable Justice Judith Woods
Appearances:
|
|
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____________________________________________________________________
ORDER
UPON application for an Order extending the time within which a notice of objection in respect of an assessment made under the Income Tax Act for the 2005 taxation year may be served, the application is denied.
Signed at Ottawa, Canada this 3rd day of December 2008.
BETWEEN:
ADRIAN TEREK,
Applicant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR ORDER
(Delivered orally from the Bench on November 28, 2008)
[1] Adrian Terek seeks an extension to file a notice of objection where he has received a nil assessment for the relevant taxation year. The purpose for the objection is to enable a proper determination of tuition and education tax credits to be determined. The credit cannot be used by Mr. Terek in the relevant year but it can be used by his father and himself in later years.
[2] Unfortunately for Mr. Terek, my hands are tied on this matter. In the past few years some judges on this court have been sympathetic to circumstances similar to this and they have allowed an appeal of a nil assessment to go forward. More recently the Federal Court of Appeal has said that it is not proper to do this in the case of Interior Savings Credit Union v. The Queen.
[3] Unlike the case before the Federal Court of Appeal, Mr. Terek is not seeking to appeal but is seeking the right to file a notice of objection. The issue though is the same. One can only file a notice of objection to an assessment and a nil assessment is not an assessment for these purposes.
[4] I am going to have to deny the application for an extension of time on this basis.
[5] Before concluding, I would say that I am very hopeful that Mr. Terek will not be barred from having this issue properly considered in respect to his father’s assessment and in respect to his own assessments for later years. If the Minister sees it otherwise, I urge you to come back to this Court.
Signed at Ottawa, Canada this 3rd day of December 2008.
"J. Woods"
Woods J.
COURT FILE NO.: 2008-1536(IT)APP
STYLE OF CAUSE: ADRIAN TEREK AND HER MAJESTY THE QUEEN
PLACE OF HEARING: Calgary, Alberta
DATE OF HEARING: November 28, 2008
REASONS FOR ORDER BY: The Honourable Justice J. Woods
DATE OF ORDER: December 3, 2008
APPEARANCES:
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Agent for the Applicant: |
Cate Terek
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Counsel for the Respondent: |
Robert Neilson |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada