[1] The issue in this appeal is whether, in the circumstances of this case, the taxpayer may file multiple appeals to the Tax Court based on different issues in respect of a single reassessment.

FACTS

[2] On July 11, 1995, the Minister of National Revenue issued to TransCanada Pipelines Limited (TCPL) notices of reassessment in regard to its 1989 and 1990 taxation years. On October 6, 1995, TCPL served notices of objection on the Minister of National Revenue with respect to each notice of reassessment. In its notices of objection, TCPL objected to seven issues with respect to the 1989 reassessment and to four issues with respect to the 1990 reassessment. The Minister did not vary, vacate or confirm the reassessments, nor did the Minister reassess as provided in subsection 165(3) of Income Tax Act. (The Minister says this was because TCPL delayed in supplying documents, material and submissions to the Minister.) Therefore, pursuant to paragraph 169(1)(b), TCPL filed notices of appeal to the Tax Court of Canada. The notice of appeal for the 1989 taxation year was filed on April 9, 1998 and for the 1990 taxation year was filed on December 23, 1996. In the notice of appeal for the 1989 taxation year, TCPL appealed only three of the seven issues described in the related notice of objection, and in the notice of appeal for the 1990 taxation year, only two of the four issues raised in the related notice of objection were set out. On May 29, 1998, by order of the Tax Court, the two appeals were consolidated. The five issues that were included in the consolidated appeal were eventually settled on May 20, 1999.

[3] Following the May 1999 settlement, on November 8, 1999, the Minister issued new notices of reassessment in relation to TCPL's 1989 and 1990 taxation years pursuant to subsection 169(3) of the Income Tax Act. On December 16, 1999, TCPL served notices of objection against these new reassessments, citing the remaining issues (i.e. those not included in its prior appeals but set out in the 1995 notices of objection) as grounds for objecting. By letter dated January 13, 2000, the Minister advised TCPL that he considered the notices of objection invalid. On February 4, 2000, TCPL filed a notice of appeal in the Tax Court of Canada covering the remaining issues. On April 12, 2000, the Minister filed a motion in the Tax Court to have the notice of appeal quashed. On August 29, 2000, the Tax Court quashed the notice of appeal. It is that decision of the Tax Court that is now before this Court on appeal.

REASONS FOR TCPL NOT INITIALLY APPEALING ALL ISSUES

[4] TCPL's reasons for excluding the remaining issues from the notices of appeal filed in 1996 and 1998 are:

1. the issues it included were more significant in magnitude than the remaining issues;

2. the evidence relating to the included issues was more limited than the evidence pertaining to the remaining issues;

3. limiting the appeals to the included issues was an attempt to simplify and expedite the appeals and avoid delay which could prejudice TCPL's ability to present its case;

4. TCPL believed the remaining issues could be settled; and

5. TCPL hoped to avoid the time and money of TCPL, the Minister and Tax Court in connection with what might well be unnecessary litigation.

[5] Neither individually, nor collectively, do these reasons establish any practical necessity for not including in the notice of appeal all the issues upon which TCPL intended to rely. Surely, it would have been the course of prudence to appeal all issues and then, by agreement or by application to the Tax Court for an order, prioritize some of the issues and defer others, bifurcate the Tax Court appeal with separate hearings on groups of issues, or otherwise manage the appeal so that it could proceed in the most efficient manner.

[6] Further, TCPL had had ample notice that it was the Minister's position that TCPL could and should include all issues in the notice of appeal. In a letter written to counsel for TCPL by counsel for the Minister on May 18, 1998, TCPL was advised that it was the Minister's position that TCPL could not hold back issues to be the subject of an additional notice of appeal at some later time if they could not be resolved. In that letter, counsel for the Minister confirmed that, in order to save time and costs, the Minister was prepared to consent to TCPL amending its notices of appeal to include the remaining issues, provided TCPL did so before examinations for discovery. In that letter, counsel for the Minister also advised TCPL that, should it pursue an additional notice of appeal for the remaining issues, the Minister would move to quash or strike the additional notice of appeal.

[7] On the basis of the material before this Court, TCPL's actions are inexplicable. TCPL argues that acceding to the Minister's position would have resulted in a delay of six months in the examinations for discovery. Having regard to the fact that by 1998, the taxation years in question were eight and nine years old and that TCPL did not file its notice of appeal from its 1989 taxation year until 1998, this argument rings somewhat hollow. By not including all issues in its notices of appeal filed in 1996 and 1998, and by not taking up the Minister's offer to consent to an amendment to the notices of appeal to include the remaining issues in the appeals, TCPL has generated litigation, delay and costs, contrary to its stated objective.

[8] However, counsel for TCPL says that either TCPL is right in law or it is not. If it is correct, it is entitled to proceed with the February 4, 2000 notice of appeal that has been quashed by the Tax Court. I turn, therefore, to TCPL's legal arguments.

ANALYSIS

[9] TCPL says it is entitled to appeal the remaining issues on three alternative bases found in the Income Tax Act:

1. paragraph 169(1)(b);

2. paragraph 169(1)(a); and

3. subsection 165(7).

1. Paragraph 169(1)(b)

[10] Subsection 169(1) provides:

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

169. (1) Lorsqu'un contribuable a signifié un avis d'opposition à une cotisation, prévu à l'article 165, il peut interjeter appel auprès de la Cour canadienne de l'impôt pour faire annuler ou modifier la cotisation:

(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.

a) après que le ministre a ratifié la cotisation ou procédé à une nouvelle cotisation;

b) après l'expiration des 90 jours qui suivent la signification de l'avis d'opposition sans que le ministre ait notifié au contribuable le fait qu'il a annulé ou ratifié la cotisation ou procédé à une nouvelle cotisation;

toutefois, nul appel prévu au présent article ne peut être interjeté après l'expiration des 90 jours qui suivent la date où avis a été expédié par la poste au contribuable, en vertu de l'article 165, portant que le ministre a ratifié la cotisation ou procédé à une nouvelle cotisation.

[11] TCPL's position is that under paragraph 169(1)(b), it is entitled to file a notice of appeal in respect of those issues that it chooses to appeal and to file subsequent notices of appeal if and when it chooses to appeal other issues. It says that there is nothing in paragraph 169(1)(b) that precludes more than one notice of appeal and there is no applicable limitation period.

[12] Following settlement of the issues included in TCPL's consolidated appeal, the Minister issued notices of reassessment for the appellant's 1989 and 1990 taxation years, which fixed TCPL's total tax liability for those years. The issuance of notices of reassessment on November 8, 1999 for those years displaced the July 11, 1995 notices of reassessment. The July 11, 1995 notices of reassessment became nullities and there is no relief that the Tax Court could grant on appeal from them. They ceased to exist when the November 8, 1999 reassessments were issued and there was nothing that the Tax Court could vary or refer back to the Minister with respect to them. See Abrahams (No. 1) v. Minister of National Revenue (1966), 66 D.T.C. 5451, at 5453 (Ex. Ct.). Therefore, the February 4, 2000 notice of appeal filed by TCPL is invalid insofar as the July 11, 1995 reassessments are concerned.

[13] TCPL argues that the July 11, 1995 reassessments became nullities only insofar as the settled issues are concerned and that the July 11, 1995 reassessments remain alive for purposes of the remaining issues. However, no such distinction is made in Abrahams, supra, nor in any relevant provision of the Income Tax Act. The November 8, 1999 reassessments displaced the July 11, 1995 reassessments in their entirety.

[14] In the alternative, TCPL says that its February 4, 2000 notice of appeal applies to the notices of reassessment issued by the Minister on November 8, 1999. The difficulty with this argument is that the November 8, 1999 notices of reassessment were issued pursuant to subsection 169(3) which provides:

169(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.

169(3) Malgré l'article 152, en vue de régler un appel interjeté en application d'une disposition de la présente loi, le ministre peut établir à tout moment, avec le consentement écrit du contribuable, une nouvelle cotisation concernant l'impôt, les intérêts, les pénalités ou d'autres montants payables par le contribuable en vertu de la présente loi.

[15] Subsection 165(1.2) prohibits an objection from an assessment made under subsection 169(3). Subsection 165(1.2) provides.

165(1.2) Notwithstanding subsections 165(1) and 165(1.1), no objection may be made by a taxpayer to an assessment made under subsection 118.1(11), 152(4.2),169(3) or 220(3.1) nor, for greater certainty, in respect of an issue for which the right of objection has been waived in writing by the taxpayer.

165(1.2) Malgré les paragraphes (1) et (1.1), aucune opposition ne peut être faite par un contribuable à une cotisation établie en application des paragraphes 118.1(11), 152(4.2), 169(3) ou 220(3.1). Il est entendu que cette interdiction vaut pour les oppositions relatives à une question pour laquelle le contribuable a renoncé par écrit à son droit d'opposition.

[16] Since a notice of appeal under paragraph 169(1)(b) is predicated on a taxpayer's serving a notice of objection, and because no notice of objection may be served from an assessment made under subsection 169(3), there is no basis for a notice of appeal under paragraph 169(1)(b) against the November 8, 1999 reassessments. In other words, no appeal can be filed under paragraph 169(1)(b) because no valid notice of objection could be served from a reassessment issued under subsection 169(3). Therefore, paragraph 169(1)(b) cannot benefit TCPL in the circumstances of this case.

[17] TCPL says that it expressly limited its consent to the settled issues only; that is, the issues that it included in its 1996 and 1998 notices of appeal. It says that the reassessments issued on November 8, 1999 cannot be said to cover the remaining issues. However, subsections 169(3) and 165(1.2) are not issue-specific. Subsection 169(3) speaks to disposing of an appeal, not of specific issues under appeal. The reassessments made on November 8, 1999 were made under subsection 169(3) and, by operation of law, no further objection may be taken in respect of those reassessments regardless of the intention of the taxpayer.

2. Paragraph 169(1)(a)

[18] For the same reason that paragraph 169(1)(b) does not ground TCPL's appeal, paragraph 169(1)(a) does not apply. With respect to the July 11, 1995 reassessments, they are nullities as a result of the November 8, 1999 reassessments and there is nothing about them left to appeal. It follows that the October 6, 1995 notices of objection relating to the July 11, 1995 reassessments are also nullities and cannot form the necessary precondition for an appeal under paragraph 169(1)(a). With respect to the November 8, 1999 reassessments, subsection 165(1.2) prohibits an objection because the November 8, 1999 reassessments were issued pursuant to subsection 169(3). Since an appeal under paragraph 169(1)(a) is predicated on the Minister's having confirmed an assessment or reassessed after the serving of a valid notice of objection, and since no such valid notice of objection has been, or could have been, served in this case by reason of Abrahams, supra, and subsection 165(1.2), there can be no appeal under paragraph 169(1)(a).

3. Subsection 165(7)

[19] Finally, the appellant says that it may appeal by reason of subsection 165(7). Subsection 165(7) provides:

(7) Where a taxpayer has served in accordance with this section a notice of objection to an assessment and thereafter the Minister reassesses the tax, interest, penalties or other amount in respect of which the notice of objection was served or makes an additional assessment in respect thereof and sends to the taxpayer a notice of the reassessment or of the additional assessment, as the case may be, the taxpayer may, without serving a notice of objection to the reassessment or additional assessment,

(a) appeal therefrom to the Tax Court of Canada in accordance with section 169; or

(b) amend any appeal to the Tax Court of Canada that has been instituted with respect to the assessment by joining thereto an appeal in respect of the reassessment or the additional assessment in such manner and on such terms, if any, as the Tax Court of Canada directs.

(7) Lorsqu'un contribuable a signifié un avis d'opposition à une cotisation conformément au présent article et que, par la suite, le ministre procède I une nouvelle cotisation ou établit une cotisation supplémentaire concernant l'impôt, les intérêts, les pénalités ou autres montants que l'avis d'opposition visait et envoie au contribuable un avis de nouvelle cotisation ou de cotisation supplémentaire, le contribuable peut, sans signifier d'avis d'opposition à la nouvelle cotisation ou la cotisation supplémentaire:

a) interjeter appel auprès de la Cour canadienne de l'impôt conformément à l'article 169;

b) si un appel a déjà été interjeté auprès de la Cour canadienne de l'impôt relativement à cette cotisation, modifier l'avis d'appel en y joignant un appel relativement à la nouvelle cotisation ou à la cotisation supplémentaire, dans la forme et selon les modalités qui peuvent être fixées par la Cour canadienne de l'impôt.

Subsection 165(7) permits an appeal without the prior serving of a notice of objection when, after the serving of an initial notice of objection, the Minister reassesses or makes an additional assessment. In such cases, a taxpayer who is still dissatisfied may appeal without serving a further notice of objection.

[20] However, subsection 165(7) does not apply to permit a subsequent appeal from a reassessment issued under subsection 169(3) that disposes of a prior appeal. Paragraph 165(7)(a), in its context, is concerned with the taxpayer's receiving a second reassessment in the period prior to the taxpayer filing a notice of appeal. Paragraph 165(7)(b) is concerned with the period after the taxpayer files a notice of appeal but before the appeal is dealt with. A taxpayer who receives a notice of reassessment in this period may amend the appeal to cover matters in the reassessment. The purpose of subsection 165(7) is to save the time and expense of the filing of a further notice of objection when the Minister reassesses after an original notice of objection is served and the taxpayer is still dissatisfied, and either has not yet appealed or has appealed but the appeal has not been decided. It does not apply after appeal proceedings have been disposed of and, in particular, after they have been disposed of under subsection 169(3). In other words, subsection 165(7) only applies before or during the period when the appeals process is still in progress but is no longer available once that process is concluded. Subsection 165(7) is of no assistance to TCPL in the circumstances of this case.

CONCLUSION

[21] Contrary to TCPL's submission, an appeal under subsection 169(1) is not from specific issues. The purpose of the appeal is to have an assessment vacated or varied. It follows that only one appeal is necessary and contemplated by subsection 169(1) in respect of an assessment. In so concluding, I do not rule out an amendment to a notice of appeal to raise additional issues, provided the amendment is timely and is sought in accordance with the Rules of the Tax Court. However, there is no basis on which a taxpayer may file separate appeals based on different issues as TCPL has attempted to do in this case.

[22] For these reasons, the appeal will be dismissed with costs.

"Marshall Rothstein"

J.A.

"I agree

J. Edgar Sexton J.A."

"I agree

John M. Evans J.A."

Summaries

Summary Under

Tax Topics - Income Tax Act - Section 165 - Subsection 165(7)

Following the serving of notices of objection by the taxpayer to 1995 reassessment and a settlement of the issues raised in notices of objection...

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Summary Under

Tax Topics - Income Tax Act - Section 169 - Subsection 169(1)

reassessments rendered previous reassessments nullities

Following the serving of notices of objection by the taxpayer to 1995 reassessments and a settlement of the issues raised in notices of objection...

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Transcanada Pipelines Ltd. v. The Queen, 2001 DTC 5626, 2001 FCA 314

Citations2001 DTC 5626, 2001 FCA 314

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Citations
2001 DTC 5626, 2001 FCA 314