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A-637-81
Tic Toc Tours Ltd. (Applicant)
v.
Minister of National Revenue (Respondent)
Court of Appeal, Pratte, Ryan JJ. and Lalonde D.J.—Montreal, May 18; Ottawa, May 26, 1982.
Judicial review — Applications to review — Income tax — Application to review and set aside decision of Tax Review Board dismissing application under s. 167 of the Act for extension of time for filing notices of objection against reas sessments for income tax — Board refused extension on grounds that, because evidence presented by applicant did not indicate that it had been impossible for it to serve notices within time limit prescribed, s. 167(2) precluded Board from exercising discretion under s. 167(1) — S. 167(1) sets out circumstances in which Board authorized to exercise discretion to extend time for serving notice of objection — S. 167(2) requires that applicant set forth reasons why notice not served within time prescribed — Application granted — Income Tax Act, S.C. 1970-71-72, c. 63, s. 167 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
G. Du Pont for applicant.
J. P. Malette for respondent.
SOLICITORS:
Verchère, Noël & Eddy, Montreal, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered in English by
PRATTE J.: This section 28 application is direct ed against a decision of the Tax Review Board dismissing an application pursuant to section 167 of the Income Tax Act, R.S.C. 1952, c. 148, as am. by S.C. 1970-71-72, c. 63, s. 1, for an order extending the time for filing notices of objection against reassessments for income tax.
The first two subsections of section 167 read as follows:
167. (1) Where no objection to an assessment under section 165 or appeal to the Tax Review Board 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 Review Board for an order extending the time within which a notice of objection may be served or an appeal instituted and the Board may, if in its opinion the circum stances 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.
(2) The application referred to in subsection (1) shall set forth the reasons why it was not possible to serve the notice of objection or institute the appeal to the Board within the time otherwise limited by this Act for so doing.
As I read the decision under attack, the member of the Board refused to grant the extension of time sought by the applicant because, as the evidence did not disclose that it had been impossible for the applicant to serve the notice of objection within the time limit, he considered that he was precluded by subsection 167(2) from exercising the discre tion conferred on him by subsection 167(1).
This decision is, in my view, founded on an error of law and must, for that reason, be set aside. The circumstances in which the Board is authorized, subject to the requirements of subsection 167(5), to exercise its discretion to extend the time within which a notice of objection may be served are described in subsection 167(1) which does not require that it should have been impossible for the taxpayer to serve the notice within the time limit. Subsection 167(2) is a procedural provision which merely requires, in my view, that the applicant set forth, in his application for an extension of time, the reasons why the notice was not served within the time prescribed.
I would, for this reason, grant the application, set aside the decision under attack and refer the matter back to the Board for decision after a new hearing before another member of the Board on the basis that subsection 167(2) must be interpret ed as merely requiring the applicant to state in his application for an extension of time the reasons
why the notice of objection was not served within the time prescribed by the Act.
RYAN J. concurred.
LALANDE D.J. concurred.
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