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R & S Industries Inc. v. Canada (National Revenue), 2016 FC 275-- summary under Subsection 18.1(2) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Federal Courts Act- Section 18.1- Subsection 18.1(2) extension not granted due to unexplained lengthy delay and lack of substantive merit On September 1, 2005, the appellant (“R & S”) transferred its assets to a limited partnership (“BELP”) which was controlled by its controlling shareholder. ... On November 12, 2010 R & S filed a Notice of Objection asserting that a reassessment of its return for the taxation year of the transfer was based on amounts mistakenly provided on the previously-filed s. 97(2) election form. ... On August 8, 2014, CRA confirmed the reassessment, to which R & S filed a Notice of Objection. ...

CRA issued Notices of Reassessments for the 2005 and 2006 taxation years in 2008 and 2010, respectively, denying the tax credits and notifying the taxpayer that he had outstanding balances. ... In also finding that the taxpayer could not establish a claim for unjust enrichment, Walker J, stated (at paras. 62, 65): I find that the CRA’s detailed evidence is reliable and establishes that the 2005 and 2006 Notices of Assessment and Refund Cheques were printed and mailed to Mr. ... He is deemed to have received the Notices of Assessment and Refund Cheques pursuant to subsection 248(7) …. ...

In order to put his affairs in order so as to not create difficulties for his heirs, he made a voluntary disclosure for his 2005 to 2014 taxation years, which was accepted by CRA on June 17, 2015, so that penalties were waived and interest relief provided for those taxation years. ... The taxpayer argued that issuing any assessment in relation to these adjustment proposals respecting the 2005 years would be contrary to the agreement entered into following the voluntary disclosure, and would be contrary to the CRA’s usual practice in dealing with voluntary disclosures of taxpayers, who are not prepared to commit “tax suicide.” ... After further noting that, under ss. 165(3) and 171, the Tax Court had the power to cancel an assessment, he stated (at para. 13): …The public interest — i.e. the orderly application of the ITA — takes precedence here over the financial and other inconveniences that the applicant may face by having, like all taxpayers, to follow the normal challenge procedure set out in the ITA. ...

Canada (Attorney General), 2020 FC 1027-- summary under Subsection 23(2) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Financial Administration Act- Section 23- Subsection 23(2) a CRA decision, refusing to recommend FAA relief for reassessments that the taxpayer had failed to appeal, was “lacking in justification, transparency and intelligibility” The taxpayer submitted, in a January 17, 2017 application for a remission order, that: due to a host of personal and financial issues, he was not able to respond effectively to large CRA reassessments of his 2005 and 2006 years had he been able to respond effectively, he could have demonstrated the reassessments’ incorrectness an accountant retained by him had inexplicably failed to pursue the matter, and due to the above issues, the taxpayer failed to file a timely appeal after CRA issued a notice of confirmation in 2010 The CRA Remission Committee refused remission largely on the grounds that the taxpayer did not demonstrate that the assessments were unfounded, had not appealed to the Tax Court when that option was open to him, and was responsible for the failures of the professional to whom he entrusted his affairs. Before setting aside the Committee’s decision and remitting it for consideration by a different decision maker, Norris J stated (at paras. 69, 72-73): It was unreasonable for the Assistant Commissioner to reject the remission request simply on the basis that the information examined during the remission review “did not reveal that the CRA made any error at the audit stage or in reassessing the 2005 and 2006 tax years” when this was the very point in issue. … [T]he Assistant Commissioner … [also] simply stated the principle that errors or omissions by tax professionals “are not considered extenuating circumstances for the purpose of remission” and then treated it as a complete answer to the applicant’s submission. … Given the importance to the applicant’s request of the question of whether any errors or omissions by the tax professionals who assisted the applicant could constitute an extenuating circumstance or, more broadly, made it unreasonable or unjust to recover the 2005/2006 debt, it was essential that the Assistant Commissioner explain why he concluded that they did not. … [I]t is insufficient to simply state the rule without also explaining why an exception should not be made in this case. ...

Other Applicants requested interest relief before the 2005 amendment to s. 220(3.1) denying interest relief more than 10 years after a taxation year (the “2004 Applicants”). ... Before dismissing the Applicants’ applications for judicial review, Boswell J stated (at paras 55- 57): … [T]he sheer quantity of the delays did not automatically warrant interest relief. … The Delegate reasonably considered the length of the delays and recognized that certain time periods were not appropriate for interest relief and others had already been accounted for in the earlier reviews. … … [T]here were no circumstances beyond the Applicants’ control which prevented them with complying with their obligations to pay tax. ... If they paid the taxes owing as stated in the assessments, no interest would have accumulated. … … [F]or the 2014 Applicants … [u]nder subsection 220(3.1), the Minister no longer has discretion to cancel or waive interest beyond 10 years …. ...

Canada (Revenue Agency), 2021 FC 431-- summary under Subsection 248(7) Summary Under Tax Topics- Income Tax Act- Section 248- Subsection 248(7) taxpayer deemed to have received refund cheques The taxpayer alleged that he had not received cheques for refunds claimed in his returns for his 2005 and 2006 taxation years, which CRA’s records showed as having been paid, and brought an action against CRA in 2018 for unjust enrichment on the basis that it had not in fact received the refunds. In finding that CRA’s records of the payments having been made were sufficient evidence of this having occurred, Walker J stated (at para. 62): I find that the CRA’s detailed evidence is reliable and establishes that the 2005 and 2006 Notices of Assessment and Refund Cheques were printed and mailed to Mr. ... He is deemed to have received the Notices of Assessment and Refund Cheques pursuant to subsection 248(7) …. ...

Canada (National Revenue), 2019 FC 348, aff'd 2020 FCA 32-- summary under Subsection 18.1(3) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Federal Courts Act- Section 18.1- Subsection 18.1(3) 30-day letter was not a judicially-reviewable “decision” The taxpayer’s counsel filed a no-name application under the CRA’s voluntary disclosure program (VDP), which CRA subsequently rejected on the basis (disputed by the taxpayer) that an audit of the taxpayer (which initially had been respecting his 2005 to 2014 taxation years) was still ongoing. ... Moreover, it has still not reassessed … Mr. Prince. In the alternative, … if the letter of December 17, 2018 was, in effect, a decision that the CRA was reassessing the Applicant, then the Federal Court would be denied jurisdiction by the effect of section 18.5 of the FCA due to the availability of an appeal of the decision. … Either way, I do not have jurisdiction. ...

Canada (Attorney General), 2019 FC 1433-- summary under Section 18.5 Summary Under Tax Topics- Other Legislation/Constitution- Federal- Federal Courts Act- Section 18.5 taxpayer could not challenge a CRA residency determination that had not yet been assessed in the context of a VDP application that had not yet been accepted or declined The taxpayer, who left Canada for Chad in 2004 (followed by a stint in Iraq) and returned to Canada in January 2010, filed a voluntary disclosure application in July 2015 pursuant to which he filed tax returns for 2004 and 2010 to 2014 – but not for 2005 to 2009, taking the position that for those years he was a non-resident. ... Powell Ltd., at para 31). … [H]e cannot judicially review this particular tax process when there has been no assessment and no discretionary decision. … Once the assessments are issued by CRA and if the Appellant wishes to file an objection and appeal, then the Tax Court has the exclusive jurisdiction to deal with whether he is a resident of Canada or not. ...

In order to put his affairs in order for his heirs, he made a voluntary disclosure for his 2005 to 2014 taxation years (i.e., all the years within the 10-year period permitted by s. 220(3.1)), which was accepted by CRA, so that penalties were waived and interest relief provided for those taxation years. 14 months later, CRA on the basis of the information provided under this voluntary disclosure began a review of the applicant’s 1980 to 2004 taxation years with a view to including of unreported income and assessing penalties for failure to file T1135s for those years. ... In refusing this request, Martineau J indicated that, under ss. 165(3) and 171, the Tax Court had the power to cancel an assessment, and stated: …The public interest — i.e. the orderly application of the ITA — takes precedence here over the financial and other inconveniences that the applicant may face by having, like all taxpayers, to follow the normal challenge procedure set out in the ITA. ...

However, on September 25, 2015, CRA sent a letter to the plaintiff indicating that her 2005 to 2014 taxation years were under audit regarding a failure to declare foreign property. ... She agreed (at para. 40) that it would have been “inequitable and unreasonable” for a voluntary disclosure to have been rejected as being non-voluntary if made one minute after communication of an audit, but noted that this was not the situation under review, stating (at para. 42, TaxInterpretations translation): Plaintiff's decision to begin identifying the scope of potential disclosure is not the end of the story. … Intentions can change, as can the scope of the proposed disclosure. … The potential scope of the Disclosure could not be determined without further investigation by Plaintiff and her counsel. … I agree with the Respondent that there is an important distinction between the date information is actually disclosed under the VDP and the date the taxpayer makes the decision to investigate the making of a disclosure. ... Gagnon or the VDP to accept his request for disclosure. … His requests sought to complete the record. ...