Order UT99-1 IN THE MATTER of an appeal by the Island Construction Limited against a decision of the Provincial Tax Commissioner, dated June 30, 1998. BEFORE THE COMMISSION on Thursday, the 25th day of March, 1999.
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
Order
WHEREAS
on February 16, 1999, the Island Construction Limited (the "Company") filed an appeal with the Commission against a decision of the Provincial Tax Commissioner, dated June 30, 1998. The appeal relates to tax assessed on a loader.The Commission's jurisdiction in appeals of this nature is set out in Section 10 of the Revenue Administration Act, which reads as follows:
10. (1) If the taxpayer or collector is dissatisfied with the decision of the Commissioner under subsection 9(3), he may, within thirty days from the date of mailing of the decision, appeal to the Island Regulatory and Appeals Commission hereafter referred to as the 'Commission'.
(2) Any appeal shall be commenced by serving upon the Commission a notice of appeal in writing setting out the grounds of the appeal and stating briefly the facts relative thereto.
(3) A notice of appeal is sufficiently served if delivered to the office of the Commission or sent by registered mail addressed to the Commission. (4) On the hearing of the appeal both the appellant and the Commissioner are entitled to be heard and to submit further evidence. (5) The Commission may, in writing, designate a person to act on its behalf and hear an appeal under this section and any reference in this section…to the Commission includes a person so designated. (6) Upon any appeal, the Commission may affirm, vary or reverse the decision of the Commissioner and shall give the appellant written notice of its decision by registered mail.It will be noted that subsection 10(1) requires the filing of an appeal within thirty days from the date of the mailing of the decision of the Provincial Tax Commissioner. In this case, the appeal was filed some seven months after the decision appealed from.
Following receipt of the appeal, the Commission invited written comments from the Company and the Provincial Tax Commissioner on issue of whether the Company's right of appeal had expired. The Company responded, in part, as follows:
We realize that our notice of appeal is beyond the deadline provided for in subsection 10(1). However, since the date of the assessment, we have been in discussions with the Deputy Provincial Treasurer regarding our position on this matter. These discussions finally concluded in January 1999 with the Deputy basically affirming the Commissioner's findings.
Subsequent to this verbal notice, we advised the Deputy of our intention to appeal. He replied that this course of action was our right under the Act. We have taken from this that the Commissioner would not challenge our right to appeal under subsection 10(1) and that the appeal would be heard on its merits.1
Counsel for the Provincial Tax Commissioner submits, in part, as follows:
Subsections 10(1) and 10(2) of the Act are explicit that an appeal from a decision of the Provincial Tax Commissioner must be commenced by serving a notice of appeal upon [the Commission] 'within thirty days from the date of mailing of the decision'. Copies of the objection and appeal provisions of the Act are included with Notices of Assessment to inform vendors of the applicable limitation periods.
Island Construction's appeal dated February 12, 1999 was commenced more than seven months after the decision of the Provincial Tax Commissioner dated June 30, 1998. Therefore, it is the position of the Provincial Tax Commissioner that, the statutory appeal period having passed, the Commission no longer has jurisdiction to hear Island Construction's appeal in this matter.2
As a creature of statute, the Commission only has the authority expressly conferred upon it by the legislature. In this case, the legislature, through the Revenue Administration Act, has clearly stipulated a time limitation for the filing of an appeal. The Commission has no ability to waive the provisions of the Act.
Given that the dates on this issue are not in dispute, the Commission must conclude that it has no jurisdiction to hear the appeal.
The foregoing is
SO ORDERED.DATED
at Charlottetown, Prince Edward Island, this 25th day of March, 1999.BY THE COMMISSION:
Wayne D. Cheverie, Q.C., Chair
Ginger Breedon, Vice-Chair
Elizabeth MacDonald, Commissioner
NOTICE
Section 12 of the Island Regulatory and Appeals Commission Act reads as follows:
Parties to this proceeding seeking a review of the Commission's decision or order in this matter may do so by filing with the Commission, at the earliest date, a written Request for Review, which clearly states the reasons for the review and the nature of the relief sought.
Sections 13.(1) and 13(2) of the Act provide as follows:
(2) The appeal shall be made by filing a notice of appeal in the Supreme Court within twenty days after the decision or order appealed from and the Civil Procedure Rules respecting appeals apply with the necessary changes.