Extreme Case Shows 90 Day Time Limit For Filing GST/HST Notice of Appeal
The Federal Court of Appeal recently put an end to a case where the taxpayer filed a GST/HST notice of objection filed 11 years after the confirmation of the assessment. In 2786885 Canada Inc. v. The Queen, the Federal Court of Appeal heard an appeal from a Tax Court of Canada decision dismissing an appeal on the basis that the notice of objection was not filed in time.
The Federal Court of Appeal wrote:
Pursuant to section 306 of the ETA, the appellant had a period of 90 days from the date of the confirmation (i.e. January 21, 1998) to file his notice of appeal. While the appellant could have sought an extension of time, subsection 306(5) of the ETA provides that no such order can be made unless the application is brought “within one year after the expiration of the time otherwise limited … for appealing;”. It follows that the Tax Court Judge had no authority to extend the time and that he properly dismissed the appeal.
[Note: I found this quote to be helpful and confusing. Subsection 306(5) of the ETA does not exist. The relevant provision is subsection 305(5) of the ETA.]
The Tax Court of Canada decision is not available. As a result, the facts are not known. The context of this case may shed light on why the notice of appeal was filed after a 11 year time lapse.
If the appellant merely waited 11 years and filed an appeal after an assessment against a director, it is understandable that the Tax Court of Canada and Federal Court of Appeal rejected the late-filed notice of appeal. If the appellant waited 11 years and filed an appeal after the collections department started various collections proceedings, it is also clear why the notice of appeal was rejected.
However, if the appellant never received the notice of confirmation of the assessment, then it may be that the appellant recently learned of Canada Revenue Agency's (CRA) position that there is an outstanding tax debt. In this circumstance, I could understand why the appellant attempted to file an appeal after what appears to be a long time delay.
The over-riding issue is that there are statutory limitation periods in tax legislation. These statutory limitation periods are used by the CRA to stop further discussion. Taxpayers must play by the rules when they have a disagreement with the CRA. One of the key rules is that a taxpayer must adhere to deadlines.
Cyndee Todgham Cherniak is counsel to and in affiliation with the International Trade Law and the Tax Law (Commodity Tax
