Holland – Federal Court finds that a taxpayer could not challenge a CRA residency determination that had not yet been assessed
The taxpayer, who left Canada in 2004 and returned in January 2010, filed a voluntary disclosure application in July 2015 covering the period from 2004 to 2014, but did not file returns for 2005 to 2009, taking the position that for those years he was a non-resident. On April 25, 2018, CRA issued a letter confirming a position taken two years earlier that the taxpayer continued his residency throughout this period.
McVeigh J confirmed the decision of the Prothonotary to strike the taxpayer’s application for judicial review of this letter on the grounds that it was premature (as the voluntary disclosure application was still outstanding, no determination had been made under s. 220(3.1)), and the Minister’s factual determination of residency could be challenged by filing tax returns for those years (which had not yet been done) and appealing assessments thereof to the Tax Court. She stated:
[H]e cannot judicially review this particular tax process when there has been no assessment and no discretionary decision.
Neal Armstrong. Summary of Holland v. Canada (Attorney General), 2019 FC 1433 under Federal Court Act, s. 18.5.