DaSilva – Tax Court of Canada accepts the taxpayer’s testimony that she did not receive a notice of assessment over a CRA affidavit to the contrary

Where a taxpayer alleges that she did not receive a notice of assessment, ETA s. 335(6) provides that an affidavit of a CRA official in charge of the appropriate records and stating that “an examination of the records shows that a notice of assessment was mailed … to a person … is evidence of [such] statement… .” (ITA s. 244(5) is somewhat similar.)

Graham J found that an affidavit by such an official (Mr. Neill) that a particular “business client communications system cycle” had ran without errors did not establish very much as he had not directly confirmed that the taxpayer’s notice of assessment was in that cycle - nor had the Crown provided an affidavit of someone working for Mr. Neill, who might have confirmed this point.

As Graham J also found the taxpayer’s testimony, that she had not received a copy of the notice of assessment until over three years following the time of its alleged mailing, to be credible, he went on to effectively find that the taxpayer had objected on a timely basis.

Neal Armstrong. Summary of DaSilva v. The Queen, 2018 TCC 74 under ETA s. 335(6).