See Also
Babakaiff v. The Queen, 2014 DTC 1012 [at at 2548], 2013 TCC 246
Woods J found that a letter from the taxpayer to CRA, indicating that his assessments were being appealed, that he was working with his accountant, and that he would keep them informed, could not reasonably be construed as an application for an extension of time.
Newfoundland Transshipment Limited v. The Queen, 2013 DTC 1111, 2013 TCC 259
After the normal reassessment period for assessing its 2002 to 2005 taxation years had passed, the taxpayer requested the Minister to reassess those years to allow capital cost allowance for its pipelines on the basis they were Class 6 rather than Class 1 assets. In denying the taxpayer's application for an extension of the time to file notices of objection for those years, D'Auray J stated (at para. 21):
[T]he Minister does not have to accept or act upon an amended return and reassess a taxpayer.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 165 - Subsection 165(1) | no obligation to reassess amended return | 86 |
Lambo v. The Queen, 2011 DTC 1236 [at at 1364], 2011 TCC 293
Little J. granted the taxpayer's s. 166.1 application. The taxpayer had filed a notice of objection within the ordinary objection period, and did not file her objection within that period only because she had been misled by a CRA Chief of Appeals to believe that she was supposed to wait to be contacted by a CRA officer before proceeding. Moreover CRA had mailed the Taxpayer's notices of reassessment to her former address. In the circumstances, denying the taxpayer's extension would be unconscionable.
Administrative Policy
Tax Professionals Mini Round Table - Vancouver - Q. 29 (March 1993 Access Letter, p. 110)
Discussion of criteria employed in reviewing applications under s. 166.1.
Subsection 166.1(2)
See Also
FOOi Inc. v. The King, 2023 TCC 176
The taxpayer was a Canadian-controlled private corporation that was found by MacPhee J to have filed its SR&ED claim for its taxation year ending on June 30, 2018 on a timely basis on December 20, 2019. However, CRA lost this filing, and the taxpayer’s accountants learned that CRA could not locate this filing approximately one year after the initial nil notice of assessment was issued for the 2018 taxation year in December 2019. On January 21, 2021, the taxpayer’s accountants wrote to the CRA SR&ED division, explained that no response had been received to the December 2019 SR&ED claim filing and provided a duplicate copy of the 2018 return along with the SR&ED claim. On March 8, 2021, CRA informed the taxpayer that the SR&ED expenditures claim was denied as it had been filed more than 12 months after the 2018 return was due.
MacPhee J rejected the taxpayer’s claim that the SR&ED claim made on December 20, 2019 could be treated as a notice of objection.
The taxpayer also submitted that the letter dated January 21, 2021 should be regarded as both an application for an extension of time with the Minister (as the 90-day period to file a notice of objection had elapsed) and a Notice of Objection. In rejecting this submission, MacPhee J stated (at paras. 36, 38):
[A]n application to extend time has to be sent to the Chief of Appeals, who is in the Appeals Division. The January 21 letter was sent to the Scientific Research and Experimental Development Division, which is a different division of the Canada Revenue Agency. Further, the January 21 letter does not clearly indicate that it is intended as an application to extend time, or even as a notice of objection. In such circumstances, the January letter cannot reasonably be interpreted as complying with s.166.1 of the Act. …
The Applicant never sent a Notice of Objection for the 2018 taxation year in a timely fashion.
Subsection 166.1(5)
Cases
Stover v. Canada (National Revenue), 2019 FC 1599
The taxpayer, who had not filed a Notice of Objection within the normal 90-day period for doing so, filed his Notice of Objection barely within the one-year period under s. 166.1(7)(a) for applying to the Minister for an extension of that deadline. Favel J stated (at paras. 50-51):
While the record did not contain information stating that the Applicant explicitly requested an extension of time or that he provided the Minister with reasons for requesting an extension of time, Notices of Objection filed after the 90 day delay for objecting, but within the extension of time delay, have been interpreted as implicit applications to extend time … .
According to subsection 166.1(5) of the Act, when an application to extend time has been filed within the delay, "“the Minister shall, with all due dispatch, consider the application and grant or refuse it, and shall thereupon notify the taxpayer in writing of the Minister’s decision.”
CRA instead essentially did nothing until the Tax Court issued an order three years later declaring the Notice of Objection to be valid. The taxpayer ultimately discontinued his Tax Court appeal (due, he claimed, to his lawyer’s mistake), but applied to CRA for interest relief under s. 220(3.1).
Favel J considered it to be unreasonable for the CRA delegate not to take the three-year delay of CRA in responding to the Objection into account in considering the interest-relief request, so that the matter was “remitted to another Delegate for redetermination of the Applicant’s entitlement to relief from interest accrued due only to delays caused by the CRA” (para. 56).
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) | CRA required to consider waiver of interest that accrued during a three-year delay in dealing with a late-filed Objection | 453 |
Subsection 166.1(7)
Paragraph 166.1(7)(a)
Cases
Canada (National Revenue) v. ConocoPhillips Canada Resources Corp., 2017 FCA 243
Woods JA found that s. 220(2.1) (which provides that “where any provision of this Act… requires a person to file a… document…the Minister may waive the requirement”) does not accord the Minister the discretion to waive the requirement to file a Notice of Objection (respecting a situation where the taxpayer allegedly did not find out about the reassessment in question until after the one-year limitation in s. 166.1(7) to obtain an extension for filing an Objection had passed).
Woods JA stated (at para. 42) that this “strict” limitation “is intentional,” and (at para. 48) that “the general waiver provision cannot be applied in this manner to override a more specific provision [s. 166.1(7)].”
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 220 - Subsection 220(2.1) | CRA has no ability to use the s. 220(2.1) waiver to extend the period for filing a Notice of Objection | 336 |
| Tax Topics - Statutory Interpretation - Specific v. General Provisions | specific time limitation rule in s. 166.1 was implied exception to the general waiver rule in s. 220(2.1) | 289 |
See Also
Ntakos Estate v. The Queen, 2018 TCC 224
An accountant got the taxpayer (Anna – who at that point was mentally failing), months before her death, to file T1 adjustment requests in 2003 for her 1998, 2001 and 2002 taxation years to allocate increased management fees and employment income to her by the family companies. This apparently had the effect of improving the tax position of one of Anna’s brothers, for whom the accountant was also acting. Over 10 years after the resulting reassessments of Anna (i.e., well beyond the s. 166.1(7)(a) deadline), her estate filed notices of objections or applications for an extension of time to file a notice of objection. Bocock J found (at paras. 10, 21):
Non est factum is available where a person is not capable of both reading and sufficiently understanding a document. …
… Anna from and after her diagnosis date, lacked mental capacity to execute or did not execute and file the 2003 filings… . Therefore, the notices of reassessments responsive to the 2003 filings … were void. … [T]he reassessments were consequential to invalid or unlawful filings and issued by the Minister under innocent mistake of fact. Accordingly, no objection was required to the void reassessments. …
Bocock J went on to vacate those reassessments.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 166 | reassessments at the request of a taxpayer lacking mental capacity were void | 430 |
DaSilva v. The Queen, 2018 TCC 74 (Informal Procedure)
The taxpayer's testimony, that she had not received a notice of assesssment denying her GST/HST new housing rebate until over three years following the date of its alleged mailing, was accepted by Graham J given, inter alia, that the tendered affidavit of a CRA official responsible for the relevant records did not establish that he had directly confirmed, through a record review, that a paticular batch of assessments that had been sent out included her notice of assesssment. Accordingly, her objection had been made on a timely basis.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Excise Tax Act - Section 335 - Subsection 335(6) | failure of official to confirm that the notice of assessment was included in a batch that had been accurately processed | 312 |
| Tax Topics - Income Tax Act - Section 244 - Subsection 244(5) | taxpayer’s testimony that she did not receive a notice of assessment accepted over a CRA affidavit to the contrary | 188 |
| Tax Topics - Excise Tax Act - Section 303 - Subsection 303(7) - Paragraph 303(7)(a) | taxpayer's testimony that she had not received a notice of assessment was credible | 166 |