1.
Appeal to Tax Court a. Legislation
Appeals to the Tax Court of Canada & the Federal Court of Appeal Appeal 169. (1) Where a taxpayer has served notice of objection to an assessment under section 165, the taxpayer may appeal to the Tax Court of Canada to have the assessment vacated or varied after either (a) the Minister has confirmed the assessment or reassessed, or (b) 90 days have elapsed after service of the notice of objection and the Minister has not notified the taxpayer that the Minister has vacated or confirmed the assessment or reassessed, but no appeal under this section may be instituted after the expiration of 90 days from the day notice has been mailed to the taxpayer under section 165 that the Minister has confirmed the assessment or reassessed. Ecological gifts (1.1) Where at any particular time a taxpayer has disposed of a property, the fair market value of which has been confirmed or redetermined by the Minister of the Environment under subsection 118.1(10.4), the taxpayer may, within 90 days after the day on which that Minister has issued a certificate under subsection 118.1(10.5), appeal the confirmation or redetermination to the Tax Court of Canada. Limitation of right to appeal from assessments or determinations (2) Notwithstanding subsection 169(1), where at any time the Minister assesses tax, interest, penalties or other amounts payable under this Part by, or makes a determination in respect of, a taxpayer (a) under subsection 67.5(2) or 152(1.8), subparagraph 152(4)(b)(i) or subsection 152(4.3) or 152(6), 164(4.1), 220(3.4) or 245(8) or in accordance with an order of a court vacating, varying or restoring the assessment or referring the assessment back to the Minister for reconsideration and reassessment, (b) under subsection 165(3) where the underlying objection relates to an assessment or a determination made under any of the provisions or circumstances referred to in paragraph 169(2) (a), or (c) under a provision of an Act of Parliament requiring an assessment to be made that, but for that provision, would not be made because of subsections 152(4) to 152(5), http://www.tstpglobal.com
the taxpayer may appeal to the Tax Court of Canada within the time limit specified in subsection 169(1), but only to the extent that the reasons for the appeal can reasonably be regarded (d) where the assessment or determination was made under subsection 152(1.8), as relating to any matter specified in paragraph 152(1.8)(a), 152(1.8)(b) or 152(1.8)(c), and (e) in any other case, as relating to any matter that gave rise to the assessment or determination and that was not conclusively determined by the Court, and this subsection shall not be read or construed as limiting the right of the taxpayer to appeal from an assessment or a determination issued or made before that time. Limitation on appeals by large corporations (2.1) Notwithstanding subsections 169(1) and 169(2), where a corporation that was a large corporation in a taxation year (within the meaning assigned by subsection 225.1(8)) served a notice of objection to an assessment under this Part for the year, the corporation may appeal to the Tax Court of Canada to have the assessment vacated or varied only with respect to (a) an issue in respect of which the corporation has complied with subsection 165(1.11) in the notice, or (b) an issue described in subsection 165(1.14) where the corporation did not, because of subsection 165(7), serve a notice of objection to the assessment that gave rise to the issue and, in the case of an issue described in paragraph 169(2.1)(a), the corporation may so appeal only with respect to the relief sought in respect of the issue as specified by the corporation in the notice. Waived issues (2.2) Notwithstanding subsections 169(1) and 169(2), for greater certainty a taxpayer may not appeal to the Tax Court of Canada to have an assessment under this Part vacated or varied in respect of an issue for which the right of objection or appeal has been waived in writing by the taxpayer. Disposition of appeal on consent (3) Notwithstanding section 152, for the purpose of disposing of an appeal made under a provision of this Act, the Minister may at any time, with the consent in writing of the taxpayer, reassess tax, interest, penalties or other amounts payable under this Act by the taxpayer. Provisions applicable (4) Division I applies, with such modifications as the circumstances require, in respect of a reassessment made under subsection 169(3) as though it had been made under section 152. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 169; 1994, c. 7, Sch. II, s. 140, Sch. VIII, s. 100; 1995, c. 21, s. 71; 1998, c. 19, s. 193; 2001, c. 17, s. 158. http://www.tstpglobal.com
Notice to Deputy Minister 170. (1) Where an appeal is made to the Tax Court of Canada under section 18 of the Tax Court of Canada Act, the Court shall forthwith send a copy of the notice of the appeal to the office of the Commissioner of Revenue. Notice, etc., to be forwarded to Tax Court of Canada (2) Forthwith after receiving notice under subsection 170(1) of an appeal, the Commissioner of Revenue shall forward to the Tax Court of Canada copies of all returns, notices of assessment, notices of objection and notification, if any, that are relevant to the appeal. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 170; 1994, c. 13, s. 7; 1999, c. 17, s. 167; 2005, c. 38, s. 140. Disposal of Appeal 171. (1) The Tax Court of Canada may dispose of an appeal by (a) dismissing it; or (b) allowing it and (i) vacating the assessment, (ii) varying the assessment, or (iii) referring the assessment back to the Minister for reconsideration and reassessment. Ecological gifts (1.1) On an appeal under subsection 169(1.1), the Tax Court of Canada may confirm or vary the amount determined to be the fair market value of a property and the value determined by the Court is deemed to be the fair market value of the property determined by the Minister of the Environment. (4) [Repealed, 1994, c. 7, Sch. IX, s. 215] NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 171; 1994, c. 7, Sch. IX, s. 215; 2001, c. 17, s. 159. Appeal from refusal to register, revocation of registration, etc. 172. (3) Where the Minister (a) refuses to register an applicant for registration as a Canadian amateur athletic association, (a.1) confirms a proposal, decision or designation in respect of which a notice was issued by the Minister to a person that is or was registered as a registered charity, or is an applicant for http://www.tstpglobal.com
registration as a registered charity, under any of subsections 149.1(2) to (4.1), (6.3), (22) and (23) and 168(1), or does not confirm or vacate that proposal, decision or designation within 90 days after service of a notice of objection by the person under subsection 168(4) in respect of that proposal, decision or designation, (b) refuses to accept for registration for the purposes of this Act any retirement savings plan, (c) refuses to accept for registration for the purposes of this Act any profit sharing plan or revokes the registration of such a plan, (d) refuses to issue a certificate of exemption under subsection 212(14), (e) refuses to accept for registration for the purposes of this Act an education savings plan, (e.1) sends notice under subsection 146.1(12.1) to a promoter that the Minister proposes to revoke the registration of an education savings plan, (f) refuses to register for the purposes of this Act any pension plan or gives notice under subsection 147.1(11) to the administrator of a registered pension plan that the Minister proposes to revoke its registration, (f.1) refuses to accept an amendment to a registered pension plan, or (g) refuses to accept for registration for the purposes of this Act any retirement income fund, the applicant or the organization, foundation, association or registered charity, as the case may be, in a case described in paragraph 172(3)(a) or 172(3)(a.1), the applicant in a case described in paragraph 172(3)(b), 172(3)(d), 172(3)(e) or 172(3)(g), a trustee under the plan or an employer of employees who are beneficiaries under the plan, in a case described in paragraph 172(3)(c), the promoter in a case described in paragraph 172(3)(e.1), or the administrator of the plan or an employer who participates in the plan, in a case described in paragraph 172(3)(f) or 172(3)(f.1), may appeal from the Minister’s decision, or from the giving of the notice by the Minister, to the Federal Court of Appeal. Exception — Charities Registration (Security Information) Act (3.1) Paragraphs (3)(a) and (a.1) do not apply to an applicant or a registered charity that is the subject of a certificate that has been determined to be reasonable under subsection 7(1) of the Charities Registration (Security Information) Act. Deemed refusal to register (4) For the purposes of subsection 172(3), the Minister shall be deemed to have refused (a) to register an applicant for registration as a Canadian amateur athletic association, (a.1) [Repealed, 2005, c. 19, s. 39] (b) to accept for registration for the purposes of this Act any retirement savings plan or profit sharing plan, http://www.tstpglobal.com
(c) to issue a certificate of exemption under subsection 212(14), (d) to accept for registration for the purposes of this Act any education savings plan, or (f) to accept for registration for the purposes of this Act any retirement income fund, where the Minister has not notified the applicant of the disposition of the application within 180 days after the filing of the application with the Minister, and, in any such case, subject to subsection (3.1), an appeal from the refusal to the Federal Court of Appeal pursuant to subsection (3) may, notwithstanding subsection 180(1), be instituted under section 180 at any time by filing a notice of appeal in the Court. Exception - Charities Registration (Security Information) Act (4.1) An appeal referred to in subsection (3) or (4) is suspended when an applicant or a registered charity is, under subsection 5(1) of the Charities Registration (Security Information) Act, served with a copy of a certificate that has been signed under that Act, whether the appeal was instituted before or after the certificate was so signed, and the appeal is (a) discontinued on the determination, under subsection 7(1) of that Act, that the certificate is reasonable; or (b) reinstated as of the date the certificate is, under subsection 7(2) of that Act, quashed. Idem (5) For the purposes of subsection 172(3), the Minister shall be deemed to have refused (a) to register for the purposes of this Act any pension plan, or (b) to accept an amendment to a registered pension plan where the Minister has not notified the applicant of the Minister’s disposition of the application within 1 year after the filing of the application with the Minister, and, in any such case, an appeal from the refusal to the Federal Court of Appeal pursuant to subsection 172(3) may, notwithstanding anything in subsection 180(1), be instituted under section 180 at any time by filing a notice of appeal in the Court. Application of s. 149.1(1) (6) The definitions in subsection 149.1(1) apply to this section. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 172; 1994, c. 7, Sch. II, s. 141; 1998, c. 19, s. 46; 2001, c. 41, ss. 115, 127; 2005, c. 19, s. 39. References to Tax Court of Canada 173. (1) Where the Minister and a taxpayer agree in writing that a question of law, fact or mixed law and fact arising under this Act, in respect of any assessment, proposed assessment, http://www.tstpglobal.com
determination or proposed determination, should be determined by the Tax Court of Canada, that question shall be determined by that Court. Time during consideration not to count (2) The time between the day on which proceedings are instituted in the Tax Court of Canada to have a question determined pursuant to subsection 173(1) and the day on which the question is finally determined shall not be counted in the computation of (a) the periods determined under subsection 152(4), (b) the time for service of a notice of objection to an assessment under section 165, or (c) the time within which an appeal may be instituted under section 169, for the purpose of making an assessment of the tax payable by the taxpayer who agreed in writing to the determination of the question, for the purpose of serving a notice of objection thereto or for the purpose of instituting an appeal therefrom, as the case may be. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. 1970-71-72, c. 63, s. 1“173�; 1984, c. 1, s. 89, c. 45, s. 73; 1988, c. 61, s. 19; 1990, c. 39, s. 45. Reference of common questions to Tax Court of Canada 174. (1) Where the Minister is of the opinion that a question of law, fact or mixed law and fact arising out of one and the same transaction or occurrence or series of transactions or occurrences is common to assessments or proposed assessments in respect of two or more taxpayers, the Minister may apply to the Tax Court of Canada for a determination of the question. Application to Court (2) An application under subsection 174(1) shall set out (a) the question in respect of which the Minister requests a determination, (b) the names of the taxpayers that the Minister seeks to have bound by the determination of the question, and (c) the facts and reasons on which the Minister relies and on which the Minister based or intends to base assessments of tax payable by each of the taxpayers named in the application, and a copy of the application shall be served by the Minister on each of the taxpayers named in the application and on any other persons who, in the opinion of the Tax Court of Canada, are likely to be affected by the determination of the question. Where Tax Court of Canada may determine question (3) Where the Tax Court of Canada is satisfied that a determination of the question set out in an application under this section will affect assessments or proposed assessments in respect of two
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or more taxpayers who have been served with a copy of the application and who are named in an order of the Tax Court of Canada pursuant to this subsection, it may (a) if none of the taxpayers so named has appealed from such an assessment, proceed to determine the question in such manner as it considers appropriate; or (b) if one or more of the taxpayers so named has or have appealed, make such order joining a party or parties to that or those appeals as it considers appropriate and proceed to determine the question. Determination final and conclusive (4) Subject to subsection 174(4.1), where a question set out in an application under this section is determined by the Tax Court of Canada, the determination thereof is final and conclusive for the purposes of any assessments of tax payable by the taxpayers named by it pursuant to subsection 174(3). Appeal (4.1) Where a question set out in an application under this section is determined by the Tax Court of Canada, the Minister or any of the taxpayers who have been served with a copy of the application and who are named in an order of the Court pursuant to subsection 174(3) may, in accordance with the provisions of this Act, the Tax Court of Canada Act or the Federal Courts Act, as they relate to appeals from decisions of the Tax Court of Canada, appeal from the determination. Time during consideration of question not counted (5) The time between the day on which an application under this section is served on a taxpayer pursuant to subsection 174(2) and (a) in the case of a taxpayer named in an order of the Tax Court of Canada pursuant to subsection 174(3), the day on which the determination becomes final and conclusive and not subject to any appeal, or (b) in the case of any other taxpayer, the day on which the taxpayer is served with notice that the taxpayer has not been named in an order of the Tax Court of Canada pursuant to subsection 174(3), shall not be counted in the computation of (c) the periods determined under subsection 152(4), (d) the time for service of a notice of objection to an assessment under section 165, or (e) the time within which an appeal may be instituted under section 169, for the purpose of making an assessment of the tax, interest or penalties payable by the taxpayer, serving a notice of objection thereto or instituting an appeal therefrom, as the case may be.
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NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 174; 2002, c. 8, s. 182. Institution of appeals 175. An appeal to the Tax Court of Canada under this Act, other than one referred to in section 18 of the Tax Court of Canada Act, shall be instituted in the manner set out in that Act or in any rules made under that Act. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 175; 1994, c. 7, Sch. VIII, s. 101. Notice, etc., to be forwarded to Tax Court of Canada 176. (1) As soon as is reasonably practicable after receiving notice of an appeal to the Tax Court of Canada, other than one referred to in section 18 of the Tax Court of Canada Act, the Minister shall cause to be transmitted to the Tax Court of Canada and to the appellant, copies of all returns, notices of assessment, notices of objection and notifications, if any, that are relevant to the appeal. Documents to be transferred to Federal Court of Appeal (2) As soon as is reasonably practicable after receiving notice of an appeal to the Federal Court of Appeal in respect of which section 180 applies, the Minister shall cause to be transmitted to the registry of that Court copies of all documents that are relevant to the decision of the Minister appealed from. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 176; 2002, c. 8, s. 149. Hearings in camera 179. Proceedings in the Federal Court of Appeal under this Division may, on the application of the taxpayer, be held in camera if the taxpayer establishes to the satisfaction of the Court that the circumstances of the case justify in camera proceedings. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 179; 2002, c. 8, s. 184. No reasonable grounds for appeal 179.1 Where the Tax Court of Canada disposes of an appeal by a taxpayer in respect of an amount payable under this Part or where such an appeal has been discontinued or dismissed without trial, the Court may, on the application of the Minister and whether or not it awards costs, order the taxpayer to pay to the Receiver General an amount not exceeding 10% of any part of the amount that was in controversy in respect of which the Court determines that there were no reasonable grounds for the appeal, if in the opinion of the Court one of the main purposes for instituting or maintaining any part of the appeal was to defer the payment of any amount payable under this Part.
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NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 179.1; 1994, c. 7, Sch. VIII, s. 102.
b. Interpretation c. Consultants Cadesky and Associates Nancy Yan 2225 Sheppard Avenue East, Atria III, Suite 1001 Toronto, Ontario, M2J 5C2 T 416-498-9500 F 416-498-9501 Milman & Company Igal Milman Tel: (416) 736 - 4438 Fax:(416) 736 - 8669 Address: 1881 Steeles Ave West Suite 203, Toronto ON M3H 5Y4 Canada
PAYNE LAW PROFESSIONAL CORPORATION Roxanne Wong ext. 228 OFL BUILDING 15 Gervais Dr. 6th Floor Toronto, Ontario M3C 1Y8 tel: (416) 447-4529 fax: (416) 447-7529 Osborne G Barnwell http://www.ogblaw.com/index.asp 245 Yorkland Blvd., Ste. 202 North York, ON M2J 4W9 Tel. 416.773.0309 Fax 416.773.0909 Email: obarnwell@ogblaw.com
Magrath O’Connor LLP 302-326 Richmond St. West Toronto, Ontario, Canada M5V 1X2 Toll free fax: 1-866-389-0743 http://www.magrathoconnor.com/ Gavin Magrath: 416-931-0463 gavin@magrathoconnor.com Sarah O’Connor:416-931-7146 sarah@magrathoconnor.com
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