One Of The Common Objection Mistakes - Missing The Deadline

There have been many times that a potential client contacts me (or any tax lawyer) to discuss filing a notice of objection to challenge a notice of assessment from the Canada Revenue Agency ("CRA"). The potential client seems to have a good legal position.  Then, I ask for the notice of assessment date and --- yikes --- it is more than 3 months ago. 

The deadline to file a GST/HST notice of assessment is 90 days from the date on the notice of assessment.  Three months is a short amount of time that seems to tick by quickly.  Some of that time passes while the notice of assessment is in the mail.  Some of the time is spent looking for a tax lawyer.  Unfortunately, some of the time is spent avoiding the issue of a GST/HST assessment.

If a taxpayer misses the 90 day deadline, is there any chance to still file a notice of objection?  The answer is that it depends..  Section 303 of the Excise Tax Act gives taxpayers an opportunity to apply to the Minister for an extension of time to file a notice of objection within one year of the expiration of the 90 days deadline.  In the application for an extension of time, the taxpayer must:

1) demonstrate that within the 90 day deadline for the notice of objection the taxpayer was unable to act or give instructions to a representative to file a notice of objection OR the taxpayer had a bona fide intention to object; and

2) give good reasons why the Minister should grant the application for an extension of time.

It is not a sure thing that the Minister will grant an extension of time to file a notice of objection.  We have been successful in receiving an extension of time when a client did not receive the notice of assessment, where the client asked for information from the auditor and was waiting for the information, where the client continues to discuss the audit file with the auditor or a supervisor after the date of the notice of assessment (and the T2020 report has recorded this contact), and when the client has communicated with the CRA about a desire to object.

It is important to note that while a telephone call does not constitute a notice of objection, telephone calls can evidence a desire to object.  That being said, if the notice of assessment was issued in 2013 and you contact a lawyer in 2016, the 90 days plus 1 year period for seeking an extension of time will have expired. In this scenario, there is no opportunity to file a notice of objection late.

If the Minister rejects an extension of time request, the taxpayer may appeal to the Tax Court of Canada to have the extension of time reconsidered (see section 304 of the Excise Tax Act). The Tax Court of Canada may dismiss the request or grant the request. The taxpayer must be able to present the Tax Cort of Canada with evidence that they intended to object to the assessment and that it would be just and equitable to grant the extension of time to file the notice of objection.  The Tax Court will not be moved by arguments that the taxpayer forgot about the deadline.

Deadlines for Filing Canadian Sales Tax Objections and Appeals

After writing my July 26, 2011 post, I decided that a chart setting out statutory limitation periods for filing notices of objection (in some provinces called a notice of appeal) and notices of appeal (to a Court) may be helpful.  A statutory limitation period is a deadline that taxpayers must meet for their objection or appeal to be considered to be filed on time and valid.  If a notice of objection or notice of appeal is not filed on or before the deadline, the lawyers for the government may not acknowledge it.

Which Sales Tax? Notice of Objection Deadline Extension Deadline After Max. Extension Notice of Appeal Deadline Extension Deadline After Max. Extension
GST/HST 90 days after notice of assessment Possible if ask 1 year of deadline Minister has discretion to set new deadline 90 days after notice of confirmation of assessment by CRA Possible if ask TCC within 1 year of deadline TCC has discretion to set new deadline
ORST 180 days after notice of assessment Possible if ask within 180 days Minister has discretion to set new deadline 90 days after decision of Ministry Possible if requested before expiry of time limit to file appeal Minister has discretion to set new deadline
B.C. SST 90 days after notice of assessment No statutory extension  N/A  90 days after notice of confirmation of assessment No statutory extension  N/A
Manitoba RST 90 days after notice of assessment  N/A N/A 90 days after Commission's decision  N/A  N/A
Saskatchewan RST  One month after the date of service of notice of estimate Possible  Board has discretion to set new deadline One month after the date of Board decision  Possible Granting extensions is at discretion of Court
Quebec Sales Tax 90 days after notice of assessment Possible if ask 1 year of deadline  Minister has discretion to set new deadline 90 days after notice of confirmation of assessment by Minister Possible if ask Court of Quebec within 1 year of deadline Court of Quebec has discretion to set new deadline

It is important to note that some of the filing deadlines require that the document be sent to a relevant governmental authority within the statutory limitation period.  This means that filing may not be sufficient to meet the deadline.  Sometimes you must file the document with the court and send it to the government body who issued the assessment (called "service") within the statutory limitation period.

Note that I have not forgotten Prince Edward Island.  Their process is different than the other provinces and there is a two step informal (not involving a court) appeal process.  The deadlines did not fit within the structure of the chart.

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. 

Motion Denied - Justice Was Not Delayed

On August 30, 2010, the Ontario Court of Appeal denied a motion brought by the Minister of Revenue for an extension of time to file an appeal in respect of a judicial review of a retail sales tax writ that was quashed by the Ontario Divisional Court.  A copy of the decision in The Minister of Revenue v. Robert Carter is available in The HST Library.

This is an important case. Robert Carter brought a judicial review (in Robert Carter v. Minister of Revenue) of writ issued by the Minister pursuant to paragraph 37(1)(b) of the Retail Sales Tax Act (Ontario). The Ontario Divisional Court quashed the writ on the basis that the Minister did not follow the process set out in Rules 60.07(2) and 60.07.1(1) of the Rules of Civil Procedure, which required the Minister to seek leave of the Court to issue the writ (due to the fact the alleged assessments were issued thirteen years earlier).  This Minister did not file leave to appeal within the 30 day time limit.  The Minister brought a motion to the Ontario Court of Appeal seeking an extension of time to file leave to appeal.  Mr. Carter opposed the motion on two grounds:

(i) the Minister did not meet the test for an extension of time; and

(ii) the Minister had not paid Mr. Carter the cost previously awarded by the Divisional Court.

The Court of Appeal agreed with Mr. Carter.

The overarching principle that is applied by the Court in such cases is "whether the 'justice of the case' required that an extension be given".  The Court of Appeal has consistently applied four factors in exercising its discretion:

1)  Whether the Appellant formed an intention to appeal within the relevant period;

2) The length of the delay and the explanation for the delay;

3) Any prejudice to the respondent; and

4) The merits of the appeal.

The Court of Appeal ultimately decided these questions in favour of Robert Carter, the respondent.  The Court was satisfied that Mr. carter demonstrated prejudice and the Minister did not show that he has a meritorious appeal.

There are many quotable statements in the decision:

  • The Ministry of Revenue wields considerable power and discretion that can affect the lives of residents in Ontario in profound ways. Insofar as the Ministry's bureaucracy is unable to comply with the Rules of Civil Procedure in doing so, it seems to me that the answer to this problem is for the Ministry to review its internal decision making processes, not for this Court to make accommodations for the Ministry that are not available to other litigants.
  • Aside from indemnifying the winning party, costs are also used as a tool to encourage settlement, deter frivolous actions and defences, and discourage unnecessary steps in the litigation process. And, because they offset some of the outlays incurred by the winner, they make litigation more accessible to litigants who seek to vindicate a legally sound position.
  • Certiori is a broad and flexible remedy. Generally speaking, it is available in most situations where a government decision has an effect on an individual's rights or legitimate expectations.  On its face, s. 37(1)(b) gives the Minister  degree of discretion in the choice of enforcement measures.  This choice will have a serious effect of the rights and obligations of individuals subject to an assessment.  I am not persuaded that this exercise of executive discretion is sheltered from judicial review simply because it can be described as routine.
  • I believe the Minister overstates its case by arguing that the Divisional Court is placing a de facto limitation period on tax collection.  The court' decision simply holds that the Minister requires leave to use one of its remedies - the warrant - where it waits six years to do so.

I will comment further on some of these points in other postings on this blog.

I must admit that I am pleased with this result for my client. I will keep readers posted on whether the Minister files an appeal to the Supreme Court of Canada.