The Tax Court of Canada is a specialized court with jurisdiction to hear most tax-related matters. That being said, some tax-related matters and some forms of remedy are not within the Tax Court of Canada's jurisdiction. For this reason, the Canadian Bar Association, Taxation Section (excluding crown lawyers who cannot take a position), the National Sales Tax, Customs and Trade Section (same limitation re crown counsel) and the Tax Court Bench & Bar Committee have put forward a resolution to support enhancing the jurisdiction of the Tax Court of Canada. I seconded the resolution in August at the Canadian Bar Association Annual Meeting in Halifax. The resolution was tabled for further discussion at the mid-year meeting in February 2012.
I spoke to the issue of "access to justice" and that taxpayers need to be able to resolve their disputes with the Canada Revenue Agency ("CRA") simply and quickly. In the past week, a case has been reported that is on point. In Frenna v. The Queen, the taxpayer appealled the CRA's denial of his Goods and Services Tax Credit ("GSTC") in the amount of $248 claimed on his income tax return. I am not missing any zeros. There was a small amount at stake and the taxpayer pursued the case on principle.
In the end, Mr. Frenna was not successful. But, that is not what I wish to highlight. Judge Sheridan added a few paragraphs at the end of the decision to highlight the Tax Court's restrictions in making a just disposition in this case. Judge Sheridan wrote for the benefit of the father of the taxpayer's spouse (Mr. Testani), who represented Mr. Frenna at the hearing:
"At the conclusion of the hearing of this appeal, I addressed certain other points Mr. Testani had made during his submissions to the Court. Although Ms. Testani noted my comments for her father’s benefit, because of his hearing difficulty, I indicated I would repeat my comments in these Reasons. His submissions and my responses thereto are summarized below:
1. Mr. Testani was understandably distressed that the Canada Revenue Agency had failed to provide him with the documentation promised in response to his inquiries and the objection to Mr. Frenna’s assessment. He went on to say that if the Minister wanted to assess on a certain basis, he should have to prove the basis for his determination was correct. On this latter point, under Canada’s self‑reporting tax system, except in certain circumstances not relevant to the present matter, the onus is on the taxpayer to prove his position in respect of the amount assessed is correct. As for the lack of documentation, it is unfortunate that Canada Revenue Agency officials did not provide Mr. Testani with the sort of analysis presented by counsel for the Respondent; had they done so, this appeal might not have been necessary. However, the lack of such documentation does not, in itself, provide me with a legal basis to allow Mr. Frenna’s appeal.
2. Mr. Testani submitted that if the Minister’s assessment were based on the assumption that Mr. Frenna and Ms. Testani had been in a common-law relationship in 2008, then the Tax Court of Canada ought to order the Canada Revenue Agency to allow certain adjustments to Ms. Testani’s 2008 income tax return to take that assumption into account. As it turned out, that was not the Minister’s position but even if it had been, I have no jurisdiction to make such an order as only the appeal of Mr. Frenna was before the Court.
3. In a similar vein, Mr. Testani argued that if the Minister had assumed that Mr. Frenna and Ms. Testani had been in a common-law relationship in 2008, the Canada Revenue Agency ought to have advised Ms. Testani to adjust her income tax return accordingly to take advantage of a deduction for Mr. Frenna. The Canada Revenue Agency is not under an obligation to provide such advice to taxpayers.
4. Finally, I referred Mr. Testani to the detailed information contained in the materials filed by counsel for the Respondent in her submissions, specifically, a highlighted copy of section 122.5 of the Income Tax Act and the Canada Revenue Agency publication, GST/HST Credit, in particular, page 9. For that reason, I have not reproduced the rather lengthy legislative provisions here.
What this case shows is that if the jurisdiction of the Tax Court of Canada was expanded to include judicial reviews, the result could have been more favourable to the taxpayer. At the present time, Mr. Frenna would have to appeal the denial of the GSTC to the Tax Court and file a judicial review with the Federal Court of Canada to review the failures on the part of the CRA to provide adequate information to Mr. Frenna. This would have involved significantly more costs and time and energy. Also, the Tax Court could not order declaratory relief and order the CRA to review Ms. Testani's tax returns to allow the deductions.
If the answer is 'YES", there is a form for that & and address to send the complaint. On September 21, 2011, the Canada Revenue Agency (CRA) released 
Cyndee Todgham Cherniak is counsel to and in affiliation with the International Trade Law and the Tax Law (Commodity Tax
