1.
Appeal to Federal Court a. Legislation
Appeals to Federal Court of Appeal 180. (1) An appeal to the Federal Court of Appeal pursuant to subsection 172(3) may be instituted by filing a notice of appeal in the Court within 30 days from (a) the day on which the Minister notifies a person under subsection 165(3) of the Minister’s action in respect of a notice of objection filed under subsection 168(4), (b) the mailing of notice to a registered Canadian amateur athletic association under subsection 168(1), (c) the mailing of notice to the administrator of the registered pension plan under subsection 147.1(11), (c.1) the sending of a notice to a promoter of a registered education savings plan under subsection 146.1(12.1), or (d) the time the decision of the Minister to refuse the application for acceptance of the amendment to the registered pension plan was mailed, or otherwise communicated in writing, by the Minister to any person, as the case may be, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiration of those 30 days, fix or allow. No jurisdiction in a Tax Court of Canada or Federal Court (2) Neither the Tax Court of Canada nor the Federal Court has jurisdiction to entertain any proceeding in respect of a decision of the Minister from which an appeal may be instituted under this section. Summary disposition of appeal (3) An appeal to the Federal Court of Appeal instituted under this section shall be heard and determined in a summary way. NOTE: Application provisions are not included in the consolidated text; see relevant amending Acts. R.S., 1985, c. 1 (5th Supp.), s. 180; 1994, c. 7, Sch. II, s. 142; 1998, c. 19, s. 47; 2002, c. 8, s. 183; 2005, c. 19, s. 40. b. Interpretation c. Consultants Cadesky and Associates Nancy Yan http://www.tstpglobal.com
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 2. Appeal to Supreme Court a. Legislation
PROCEDURE IN APPEALS
(Excerpt from Supreme Court of Canada Act) http://www.tstpglobal.com
The Appeal Proceedings in appeal 56. Proceedings on an appeal shall, when not otherwise provided for by this Act, the Act providing for the appeal or the general rules and orders of the Court, be in conformity with any order made, on application by a party to the appeal, by the Chief Justice or, in the absence of the Chief Justice, by the senior puisne judge present. R.S., c. S-19, s. 63; R.S., c. 44(1st Supp.), s. 5. Limited appeal 57. The appellant may appeal from the whole or any part of any judgment or order and, if the appellant intends to limit the appeal, the notice of appeal shall so specify. R.S., c. S-19, s. 64. Time periods for appeals 58. (1) Subject to this Act or any other Act of Parliament, the following provisions with respect to time periods apply to proceedings in appeals: (a) in the case of an appeal for which leave to appeal is required, the notice of application for leave to appeal and all materials necessary for the application shall be served on all other parties to the case and filed with the Registrar of the Court within sixty days after the date of the judgment appealed from; and (b) in the case of an appeal for which leave to appeal is not required or in the case of an appeal for which leave to appeal is required and has been granted, a notice of appeal shall be served on all other parties to the case and filed with the Registrar of the Court within thirty days after the date of the judgment appealed from or the date of the judgment granting leave, as the case may be. Computation of time periods (2) The month of July shall be excluded in the computation of a time period referred to in subsection (1). R.S., 1985, c. S-26, s. 58; R.S., 1985, c. 34 (3rd Supp.), s. 5; 1997, c. 18, s. 139. Extension of time for appeal 59. (1) Notwithstanding anything in this Act or any other Act of Parliament, the court proposed to be appealed from or any judge thereof or the Supreme Court or a judge thereof may under special circumstances, either before or after the expiration of a time period prescribed by section 58, extend that time period. Terms
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(2) Where a court or judge grants an extension of time under subsection (1), that court or judge shall impose such terms as to security or otherwise as seem proper under the circumstances. Non-application to election cases (3) This section does not apply to appeals under section 532 of the Canada Elections Act. Appeals in forma pauperis (4) Notwithstanding anything in this Act, a judge may, on an application for leave to appeal in forma pauperis, allow an appeal by giving the applicant leave to serve notice of appeal although the time prescribed by section 58 has expired. R.S., 1985, c. S-26, s. 59; R.S., 1985, c. 34 (3rd Supp.), s. 6; 2000, c. 9, s. 572. Procedure on appeal 60. (1) An appeal shall be brought, within the time prescribed by section 58 or allowed under section 59, by (a) serving a notice of appeal on all parties directly affected; and (b) depositing with the Registrar security to the value of five hundred dollars that the appellant will effectually prosecute the appeal and pay such costs and damages as may be awarded against the appellant by the Court. Approval of security (2) Where the security deposited is other than money, it shall be to the satisfaction of the court proposed to be appealed from or a judge thereof or to the satisfaction of the Supreme Court or a judge thereof. Notice of security (3) Within seven days from the deposit of the security or, where subsection (2) applies, from the later of the deposit of the security and its approval as required by that subsection, the appellant shall notify all parties directly affected. Service and filing of notice of appeal (4) The notice of appeal with evidence of service thereof shall be filed with the Registrar and a copy of the notice shall be filed with the clerk or other proper officer of the court appealed from within twenty-one days from the time prescribed by section 58 or allowed under section 59. R.S., c. S-19, s. 66; R.S., c. 44(1st Supp.), s. 6. When error in law alleged
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61. Whenever error in law is alleged, the proceedings in the Court shall be in the form of an appeal. R.S., c. 44(1st Supp.), s. 6. Appeal to be on a stated case 62. (1) An appeal shall be on a case to be stated by the parties or, in the event of difference, to be settled by the court appealed from or a judge thereof. Elements of case (2) The case shall set out the judgment objected to and so much of the pleadings, evidence, affidavits and documents as is necessary to raise the question for the decision of the Court. Further evidence (3) The Court or a judge may, in the discretion of the Court or the judge, on special grounds and by special leave, receive further evidence on any question of fact, such evidence to be taken in the manner authorized by this Act, either by oral examination, by affidavit or by deposition, as the Court or the judge may direct. R.S., 1985, c. S-26, s. 62; 1990, c. 8, s. 39. Transmission of record 63. The clerk or other proper officer of the court appealed from shall, on payment to that clerk or officer of the proper fees and expenses of transmission, transmit the case, as soon as may be after service on the clerk or officer of the notice of appeal, to the Registrar, and further proceedings shall thereupon be had according to the practice of the Supreme Court. R.S., c. S-19, s. 68. Exceptions 64. The provisions of this Act requiring the deposit of security for costs do not apply to appeals by or on behalf of the Crown or in election cases, in cases in the Federal Court of Appeal or the Federal Court, in criminal cases or in proceedings for or on a writ of habeas corpus. R.S., 1985, c. S-26, s. 64; 2002, c. 8, s. 176.
Rules of the Supreme Court of Canada Submission of Applications. 32. (1) The Registrar shall submit to the Court for consideration http://www.tstpglobal.com
(a) an application for leave to appeal, either (i) after the reply is filed or at the end of the 10-day period referred to in Rule 28, as the case may be, or (ii) if no response is filed, at the end of the 30-day period referred to in Rule 27; and (b) an application for leave to cross-appeal, either (i) after the reply is filed or at the end of the 10-day period referred to in Rule 31, as the case may be, or (ii) if no response is filed, at the end of the 30-day period referred to in Rule 30. (2) No documents shall be filed after the application for leave to appeal or leave to cross-appeal, as the case may be, has been submitted to the Court unless the Registrar, on motion, otherwise orders. (3) The Registrar shall set down for hearing any application for leave to appeal for which an oral hearing has been ordered pursuant to paragraph 43(1)(c) of the Act. Notice of Appeal. 33. A notice of appeal under paragraph 60(1)(a) of the Act shall (a) be in Form 33; (b) set out the provision or provisions of the statute that authorizes the appeal; (c) in the case of an appeal under paragraphs 691(1)(a), 691(2)(a), 692(3)(a) or 693(1)(a) of the Criminal Code, set out the questions of law on which the dissenting judgment of the court appealed from is, in whole or in part, based, and include as a schedule to the notice of appeal a copy of the judgment and reasons for judgment appealed from; (d) in the case of all other appeals for which leave to appeal is not required, include as a schedule to the notice of appeal a copy of the judgment and reasons for judgment appealed from; (e) in the case of an appeal referred to in paragraph (c) or (d), be accompanied by a certificate in Form 25B that
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(i) states whether there is a sealing order or ban on the publication of evidence or the names or identity of a party or witness, gives the details of the sealing order or ban, if any, and includes a copy of any written order, and (ii) states whether there is any confidential information on the file that should not be accessible to the public by virtue of specific legislation and includes a copy of the provision of the legislation; and (f) if a judge's previous involvement or connection with the case would result in it being inappropriate for that judge to take part in the adjudication on the proceedings in the Court, be accompanied by a certificate in Form 25C setting out the issues. SOR/2006-203, s. 11. Top of Page
Service and Filing of Notice of Appeal. 34. In addition to the service required under paragraph 58(1)(b) of the Act, the appellant shall (a) send to any party in the court appealed from who is not named in the style of cause referred to in subrule 22(3) a copy of the notice of appeal by ordinary mail or by fax to the latest known address or fax number, as the case may be; and (b) file with the Registrar the original and one copy of the notice of appeal together with an affidavit setting out the names of the parties referred to in paragraph (a) and the addresses or fax numbers to which the copies were sent. SOR/2006-203, s. 12.
b. Consultants 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. http://www.tstpglobal.com
6th Floor Toronto, Ontario M3C 1Y8 tel: (416) 447-4529 fax: (416) 447-7529
1) Resources FE Client Information Form
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Addendum: CRA Statements Filing an Appeal
You are entitled to fair treatment in all your dealings with us. One of the most important features of this fair treatment is the right to a formal review of your income tax assessment. Our declaration called Your Rights affirms this right. More information about fairness and your rights is available on our fairness Web page at www.cra.gc.ca/fairness. In this brochure, we outline what you can do if you do not understand or agree with your income tax assessment and would like to dispute it. This brochure deals only with objections and appeals under the Income Tax Act. You can find information on objections and appeals under Part IX, goods and services tax/harmonized sales tax (GST/HST), of the Excise Tax Act in Chapter 31 of the GST/HST Memoranda Series, Objections and Appeals. You can also find information on appeals under the Employment Insurance Act and the Canada Pension Plan in the pamphlet called Your Appeal Rights: Employment Insurance and Canada Pension Plan Coverage. You can get these documents on our Web site at www.cra.gc.ca, or by calling us at 2221 .
1-800-959-
This brochure is only a guide. For more detailed and technical information, please see the Income Tax Act, the Tax Court of Canada Act, and the Federal Courts Act. Note In this brochure, any reference to assessments also includes reassessments. In addition, rights of objection and appeal that apply to assessments and reassessments also apply to determinations and redeterminations we issue, such as child tax benefit and GST credit notices.
Our mandate The mandate of the Appeals Branch is to resolve disputes arising from decisions made under legislation administered by the Canada Revenue Agency by conducting fair and impartial reviews. Our highly skilled workforce will conduct these fair and impartial reviews by actively engaging in dialogue and utilizing alternative processes when appropriate.
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In cases where litigation becomes necessary, we will collaborate with the Department of Justice in the conduct of court cases. A responsive redress process promotes voluntary compliance and fosters trust in the integrity of the Canada Revenue Agency.
Before filing an objection Many misunderstandings arise from miscommunication or a lack of information. That's why we say: Talk to us. If you disagree with your assessment, we strongly recommended that you first call or write to the tax centre that processed your return to discuss the matter. Many disputes are resolved this way.
Filing an objection Why do you file? You can file an objection for many reasons, such as: • •
you disagree with an assessment you have received indicating taxes are owing; or there is a dispute over how we have interpreted the income tax law.
Filing an objection is the first step in the formal process of resolving a dispute. After you file an objection, the Appeals Division will impartially review it.
Time limits If you are an individual (other than a trust), or filing for a testamentary trust, the time limit for filing an objection is whichever of the following two dates is later: • •
one year after the date of the return's filing deadline; or 90 days after the day we mailed the notice of assessment.
In every other case, you have to file an objection within 90 days of the day we mailed the notice of assessment.
How do you file? You can file an objection by using the My Account feature on the CRA Internet site or by writing to the Chief of Appeals at your Appeals Intake Centre. (see sample letter in Appendix A). You can find a list of the Appeals Intake Centres in Appendix B. If you prefer, you can use Form T400A, Objection – http://www.tstpglobal.com
Income Tax Act. We have provided a copy of the form in the middle of this brochure.
Representation Anyone can file an objection on your behalf such as a family member or a friend, if they are authorized. If you would like to authorize the Canada Revenue Agency (CRA) to deal with another person (such as your spouse or common-law partner, other family member, tax practitioner, or accountant) as your representative for income tax matters you must complete and submit form T1013, Authorizing or Cancelling a Representative.
What information should you include? Give the following information when you file an objection: • • • • • • • •
your name and address; a telephone number where we can reach you during the day; the date of your notice of assessment; the taxation year (if applicable); your social insurance number or Business Number; the facts and reasons for your objection; all documents that support your objection; and the name and address of your authorized representative (if applicable).
Sign and date your objection. An authorized officer must sign for a corporation or trust. Note If you include a copy of your notice of assessment, it will help us process your objection.
Limitations on your right to object In most cases, you can object to any item in a reassessment. However, in a few situations, you can only object to the matter that caused the reassessment. The Appeals Division will tell you if limitations apply.
Reviewing your objection We will review your objection and if necessary contact you or your representative to discuss the matter.
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To ensure that you or your representative understands the reasons for the assessment and to provide an open exchange of information, we can provide you with the documents related to the issues in dispute. In addition, we inform you of any discussions we have had with assessing area representatives about your disputed assessment. After considering all the facts, the Chief of Appeals or another authorized officer will make the final decision about your assessment. If the officer agrees with you in whole or in part, we will adjust your tax return and send you a notice of reassessment. However, if the officer disagrees, we will send you a notice to confirm the assessment was correct.
What is available to you The following list indicates the type of information that is generally available to you. This list is not exhaustive, as information in each file may vary. • • • • • • •
Copies of your tax returns; Reports prepared by an auditor to support your assessment; Working papers prepared by an auditor that are relevant to the issues in your dispute; Records of discussions between an appeals officer and an auditor regarding your assessment; Copies of court decisions and relevant sections of legislation relied on by an auditor to support your assessment; Scientific, appraisal, and valuation reports relied on by an auditor to determine your assessment; and Information obtained from a third party with whom you are doing business, such as sales invoices, purchase orders, cancelled cheques.
What is not available to you Your right to have information held in confidence is one of the underlying principles of the Canadian tax system. We guard that right stringently. To protect sensitive information regarding other individuals and businesses and to maintain the integrity of the tax system, the following information must remain confidential and cannot be provided to you: • • • • • •
Personal information relating to another person; Information from a third party obtained on the expectation that the information would remain confidential; Information subject to solicitor/client privilege, such as legal opinions and referrals for legal opinions, including the submissions made in support of the referral; Documentation related to an on-going investigation; Confidential information obtained from other federal departments, provincial or municipal governments, and treaty partners; and Our audit techniques, limits, tolerances, and specific tests, the disclosure of which would prejudice the results or future use.
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Time extension If you did not file your objection on time because of circumstances beyond your control, you can apply for a time extension. You can apply by writing to your Appeals Intake Centre or by using the My Account feature on the CRA Internet site. You can find a list of the Appeals Intake Centres in Appendix B. You have to explain why you did not file your objection on time, and enclose your objection. Time limit Apply as soon as possible, but no later than one year after the date you had to file the objection. Conditions for an extension To get an extension, you have to show that: • • •
within the objection period: o you could not object or have someone else object for you; or o you intended to object; it would be fair to grant your application; and you applied as soon as you could.
The Chief of Appeals or another authorized officer can grant or refuse an extension. We will notify you in writing of the decision. If we grant you an extension, your objection is considered to be filed on the day we mail you the decision notice. Applying to the Tax Court of Canada If we refuse to extend the time, you can apply to the Tax Court of Canada for further consideration. The Court has to receive your application within 90 days of the day we mailed you our refusal notice. You can also apply to the Court if we do not give you a decision within 90 days of the day you filed your application for extension. To apply, you need three copies of: • • •
the application sent to the Chief of Appeals; the objection; and our refusal notice (if we issued one).
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Deliver or send these copies by mail to the Registry of a Tax Court of Canada office. You can also send a copy of these documents by fax. If you send them this way, you also have to deliver or mail three copies to the Court at once. You can find a list of the Tax Court of Canada offices in Appendix C.
Appealing to the Tax Court of Canada If you do not agree with our decision on your objection, you can appeal to the Tax Court of Canada. The Tax Court of Canada is an independent court of law that regularly conducts hearings in major centres across Canada. It follows two procedures: the informal procedure and the general procedure.
Time limit The Tax Court of Canada has to receive your appeal notice within 90 days of the date we mail our decision (a notice of reassessmentor a notice of confirmation) on your objection. You can also appeal to the Court if we do not give you a decision on your objection within 90 days of the day you filed it.
Informal procedure You qualify to use the informal procedure if: • • •
the disputed amount of federal tax and penalties is not more than $12,000 per assessment; the disputed loss amount is not more than $24,000 per determination; or interest on federal tax and on penalties is the only matter in dispute.
Note If the disputed amounts are more than the informal procedure limits, you can restrict your appeal to those limits. You have to state this in your appeal.
To resolve appeals as quickly and informally as possible, the Court does not have to follow legal or technical rules of evidence. A judgment issued under the informal procedure will not be treated as a precedent for other cases. Appeal notice You do not need a form to file an appeal. However, you have to appeal in writing and state the reasons for your appeal and the relevant facts.
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Election If you would like to have the Court hear your appeal under the informal procedure, you must clearly indicate this in your appeal notice or in a letter to the Court no later than 90 days after the date we reply to your appeal. Filing You can file your appeal by delivering or mailing your appeal notice to the Registry of a Tax Court of Canada office, together with the appropriate filing fee. You can also send your notice of appeal by fax or by using the Tax Court of Canada's online document-filing facility accessible through its Web site. If you send it in either of these ways, you also have to deliver or mail the original of your appeal, together with the filing fee, to the Court at once. You can find a list of the Tax Court of Canada offices in Appendix C. Filing fee You have to include a filing fee of $100 with your appeal. Your cheque for the filing fee should be made payable to the Receiver General for Canada. If you are an individual, the Court may waive this fee if it is satisfied that the payment would cause you severe financial hardship. If you want to ask the Court to waive the filing fee, you have to ask in your written appeal. If the Court allows your appeal in whole or in part, it will reimburse the filing fee. Representation You can either represent yourself or have another person act for you. Time limits To ensure prompt hearings, the informal procedure imposes strict time limits on us and the Court. Generally, the time limits are as follows: • • •
We have to reply to your appeal within 60 days of the date the Registry of the Court sends us the appeal. The Court must hear the appeal no later than 180 days after the last day we have to file our reply. The Court must give its judgment within 90 days of the date the hearing ends.
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If you are more than 50% successful in your appeal, the judge can order us to pay part of your legal costs. For example, you would be in such a situation if you are disputing $6,000 of federal tax on disallowed expenses and the judge's decision reduces this amount by more than $3,000 in tax. However, if you lose your appeal, the informal procedure rules do not allow the judge to order you to pay our costs.
General procedure Unless you qualify for and choose to follow the informal procedure, the Tax Court of Canada will hear your appeal under the general procedure, regardless of the disputed amount. The general procedure follows formal court rules, which cover such matters as: • • • •
filing of an appeal; rules of evidence; examinations for discovery; and production of documents.
Representation Individuals can either represent themselves or have a lawyer represent them. A lawyer has to represent a corporation, except in special circumstances when the Court may allow one of the corporation's officers to represent it. Note For information on how to file a notice of appeal, contact any of the Tax Court of Canada offices we have listed in Appendix C.
Filing fees You have to include a filing fee with your appeal. We have listed the rates below: Filing Total federal tax and penalty in dispute fee
Loss contested
$250
up to $49,999
up to $99,999
$400
$50,000 to $149,999
$100,000 to $299,999
$550
$150,000 or more
$300,000 or more
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If interest is the only matter you are appealing, the filing fee is $400 regardless of the disputed amount. Costs The Court can order the unsuccessful party to pay some of the other party's legal costs.
Time extension If the Tax Court of Canada does not receive your appeal within 90 days of the date we mailed our decision on your objection, you can apply to the Court for a time extension. Deliver or send by mail to the Registry of a Tax Court of Canada office three copies of your application, together with three copies of your notice of appeal. You can also send your application and appeal notice by fax or by using the Tax Court of Canada's online document-filing facility accessible through its Web site. If you send your documents in either of these ways, you also have to deliver or mail three copies to the Court at once. On your application, you have to state why you did not file your appeal on time. You can find a list of the Tax Court of Canada offices in Appendix C. Time limit Apply as soon as possible. The Court has to receive your application no later than one year after the date you had to file a notice of appeal. Conditions for an extension To get an extension, you have to show the Court that: • • • •
within the appeal period: o you could not appeal or have someone else appeal for you; or o you intended to appeal; it would be fair to grant your application; you applied as soon as you could; and you have reasonable grounds for appealing.
If the Court grants your application, it will issue an order extending the time to appeal.
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Appealing to theFederal Court of Appeal You can appeal a judgment of the Tax Court of Canada to the Federal Court of Appeal. You have to file the appeal within 30 days of the date of the Tax Court's judgment. The months of July and August are excluded from the 30-day calculation. The Federal Courts Act restricts the grounds for an appeal from a judgment heard under the Informal Procedure by the Tax Court.
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