Taxpayer appealed his reassessments for 2003 and 2004 taxation years in 2016 and alleged that Minister of National Revenue never mailed notice of confirmation to him so his objection was still outstanding. Crown brought motion to quash appeal on basis that appeal was filed out of time. Tax Court judge granted motion and quashed appeal. Judge held that notice of confirmation was mailed to taxpayer in October 2009. Although Crown could not rely on s. 244(5) of Income Tax Act to prove mailing, evidence established that it was more likely than not that notice of confirmation was mailed to taxpayer on that date. Judge found that presumption of truth of allegations in notice of appeal in R. 44(2) of Tax Court of Canada Rules (General Procedure) had potential application where no reply had been filed in Tax Court within 60-day period and no extension of time for filing reply had been applied for or granted, or no reply had been filed within extended period for filing. Judge found that presumption in R. 44(2) of Rules did not apply because Crown had moved on timely basis for extension of time to file reply and court had not yet ruled on that request. Judge held that since last day on which request for extension of time to file notice of appeal could be made was in January 2011, appeal was filed out of time. Taxpayer appealed. Appeal dismissed. Judge’s finding of fact that notice of confirmation was most probably mailed in October 2009 was amply supported by evidence. Judge did not err in interpretation of R. 44(2) of Rules. Presumption of truth of allegations in notice of appeal, if reply was not filed within period specified in R. 44(1) of Rules, could not operate unless Tax Court had previously rejected Crown’s timely request for extension of time to file reply.
Boroumend v. Canada (2017), 2017 CarswellNat 7339, 2017 FCA 245, Eleanor R. Dawson J.A., Stratas J.A., and Rennie J.A. (F.C.A.); affirmed (2016), 2016 CarswellNat 11516, 2016 CarswellNat 5681, 2016 TCC 256, 2016 CCI 256, David E.Graham J. (T.C.C. [General Procedure]).