Section 167

Subsection 167(1) - Extension of time to appeal

Cases

McGill v. MNR, 85 DTC 5439, [1985] 2 CTC 209 (FCA)

The applicant failed to object within 90 days because he was "wholly indifferent as to the proper manner of exercising his legal rights," and his application for relief was properly denied by the Tax Court.

It was stated, obiter, that "s.167 permits of an equitable and discretionary relief. The maxim 'ignorance of the law is no excuse' which is drawn from the criminal law is quite simply irrelevant to the exercise of that discretion".

Tic Toc Tours Ltd. v. MNR, 82 DTC 6231, [1982] CTC 264 (F.C.A)

Where the evidence does not disclose that it had been impossible for the applicant to serve the notice of objection within the time limit, the Tax Court is not precluded by s. 167(2) from granting an extension under s. 167(1). S.167(2) merely requires the applicant to state the reasons why the notice of objection was not served within the prescribed time, and does not limit the Tax Court's discretion under s. 167(1).

Subsection 167(4) - Copy to Deputy Attorney General

Cases

Gough v. The Queen, 82 DTC 6143, [1982] CTC 161 (FCTD)

Ignorance of the procedural rules set out in the Act is not an excuse justifying the elapse of 16 months before attempting to institute an appeal.

Linett v. The Queen, 79 DTC 5471, [1980] CTC 36 (FCA)

S.167(4) is not available to the Crown. "Parliament, having given a lengthy delay of 120 days to institute an appeal, intended to extend the privilege of seeking an extension of such delay only to a taxpayer ..., possibly to achieve some degree of finality in income tax proceedings for the sometimes beleagured taxpayer."

Subsection 167(5) - When order to be made

Cases

Kershaw v. The Queen, 92 DTC 6240 (FCA)

The taxpayer did not receive the notices of reassessment in question until after the expiry of the 90-day period. A delay of two months before notices of objection were filed (resulting in a further delay of one month before an application for extension was made) was justified given the difficulty of the accountants in determining the basis for computation of the reassessments. Accordingly, the Court allowed an application made under s. 28 of the Federal Court Act to set aside the decision of the Tax Court judge denying an extension, and returned the matter to the Tax Court for reconsideration by a different judge.

Clow v. The Queen, 92 DTC 6155 (FCTD)

The taxpayer's rights under s. 7 of the Charter were not infringed by s. 167(5)(a) of the Income Tax Act.

The Queen v. MerBan Capital Corp. Ltd., 89 DTC 5404 (FCA)

The Tax Court was correct in rejecting an extension application, given that the taxpayers were only able to justify a portion of the delay between the time (January 1987) that they had known their notices of objection had been filed late and the time (November 1987) that they applied for the extension.

Minuteman Press of Canada Co. Ltd. v. MNR, 88 DTC 6278, [1988] 1 CTC 440 (FCA)

A letter sent to the Registrar beyond the 90-day period stating "we wish to appeal" was found by the Tax Court not to be an application for extension of time. Heald, J. in the Court of Appeal stated: "Once it has been found that there has been no application made for an extension of time, the question of whether or not it would be just and equitable to grant an extension does not arise."

N.D.G. Neighbourhood Association v. MNR, 88 DTC 6279, [1988] 2 CTC 14 (FCA)

"[T]he applicant carries the onus of showing that it would be just and equitable to grant the extension of time sought and that the application was brought as soon as circumstances permitted it to be brought."

The Queen v. Pennington, 87 DTC 5107, [1987] 1 CTC 235 (FCA)

Although the taxpayer was notified on January 21, 1985 that he had not submitted his notice of objection within the prescribed time, he did not file an application for an extension until November 13, 1985. His explanation was that his accountant was attempting to negotiate a settlement with Revenue Canada during this period, and he thought he had a year to apply. In finding that this was not sufficient justification, Thurlow, C.J. stated: "What the statute appears to me to require is that the taxpayer make his application as early as, under the particular circumstances, he could reasonably be expected to get an application ready and present it."

See Also

Gidda v. The Queen, 2013 DTC 1158 [at 871], 2013 TCC 190

The taxpayers were two individuals and two corporations, with one individual taxpayer acting on behalf of all four. The representative taxpayer had filed the appeals with the CRA rather than the Tax Court Registry. C Miller J found that the taxpayers could not avail themselves of the Hickerty principle to suspend the one-year grace period, because in this case it was unreasonable for the taxpayers to believe that they had validly instituted an appeal. The representative taxpayer had persistently ignored communication attempts from CRA, and had been involved in prior tax appeals as an appellant and as an agent.

Gamble v. The Queen, 2011 DTC 1238 [at 1378], 2011 TCC 244

McArthur J. stated (at para. 8):

Having gone through a separation from his spouse and moving out of the family, he did not receive or open the June 2, 2009 confirmation until August 20, 2009. It was far too complex for him to prepare a Notice of Appeal. Having a few days left to meet the 90 day 169(1) time limit, he called his lawyer who referred him to a tax lawyer who was out of town until mid September 2009. He then called and spoke to an officer of the Court advising him that he wanted to appeal. He was sent an email package from which he concluded he had an additional 365 days within which to appeal. I accept these actions as satisfying clause 167(5)(b)(i)(B).

The taxpayer also had a criminal charge to contend with, as well as health problems and a lack of funds with which to retain a tax lawyer.

Roman Miniotas (Romeo’s Plumbing & Heating) v. The Queen, 2011 DTC 1078 [at 420], 2011 TCC 43

The taxpayer's accountant sent letters on 3 and 24 October 2007, appealing an assessment. For reasons unknown, the letter was delivered to CRA rather than the TCC - in Winnipeg, they were on the same street and only a few blocks apart. The accountant died before he could explain the situation. The taxpayer himself then sent a filing extension request after the 167(1)(a) deadline. Woods J. stated at 26 that it is appropriate for the Courts to take a compassionate view to deadline extensions. Considering the 24 October 2007 letter, she stated at para. 29:

The letter ... makes reference to prior objections to the appeals court being sent within time time limit. A plausible interpretation of this statement is that the accountant was aware that the deadline had passed and he was requesting that the appeal be filed in any event. If this interpretation is correct, then the letter could reasonably be considered to be an application to extend time to appeal.

Woods J. also noted at para. 32 that the matter would not have been so far off track if CRA had forwarded the 24 October 2007 letter to the TCC. Moreover, there was no prejudice to CRA in allowing the extension, as the CRA was on notice that the taxpayer wished to appeal. She ordered that the 24 October 2007 letter be deemed a validly instituted notice of appeal.

Hickerty v. The Queen, 2007 TCC 482

The taxpayer mailed her appeal to a CRA address instead of the Tax Court Registry within the applicable deadline (and before she received CRA's information package that would have told her the correct recipient for an appeal). She applied to the Court under s. 167 for an extension.

Boyle J granted the application, notwithstanding that the taxpayer's reassessments were dated 8 July 2003, and the Tax Court Registry did not receive a copy of the appeal until December 2004, more than a year after the 90-day filing deadline. Based on the principle that the Tax Court prefers to decide appeals on their merits, Boyle J stated (at para. 12):

In the circumstances, I am of the view that the period during which the taxpayer is under a reasonable but mistaken belief that she has validly instituted an appeal is not included in the further one year grace period provided for in paragraph 167(5)(a). ... [I]f a taxpayer mistakenly but reasonably believes that she has validly instituted an appeal and the other requirements of subsection 167(5) are met, the one year grace period stops running until the taxpayer becomes aware, or should have become aware if she is acting and thinking reasonably, that the intended appeal was invalid.

Cline v. The Queen, 95 DTC 302 (TCC)

McArthur TCJ. found that an eight-month delay was justified given that the taxpayer (who was suffering economic difficulties) took over six months to obtain funds to pay a retainer to his lawyer, and his lawyer then went on vacation.

Dufour v. MNR, 90 DTC 1238 (TCC)

The taxpayer's accounting firm realized six weeks after the expiration of the ninety-day period for filing a notice of appeal to the Tax Court that the former member of the firm responsible for the file, and who had left, had failed to file the appeal. A prompt application for extension was granted by Tremblay J.

Paragraph 167(5)(a)

See Also

Pietrovito v. The Queen, 2017 TCC 119

time period not suspended where taxpayer reasonably believed appeal had been filed

In each of the 2001 and 2002 taxation years, the taxpayer made a donation to the John McKellar Charitable Foundation (the “Foundation”) and claimed the corresponding tax credits, which were disallowed by the Canada Revenue Agency (the “CRA”). The taxpayer duly serviced notices of objection for both taxation years. In 2012, the taxpayer sent two separate emails to his representative, one with a copy of the 2001 Notice of Confirmation (NOC) and the other with a copy of the 2002 NOC. The representative mistakenly forwarded only the 2001 NOC to the taxpayer’s counsel, who then prepared a notice of appeal (NOA) in respect of the 2001 reassessment only. The taxpayer requested the Court to grant an application to extend time to file a NOA in respect of the 2002 Reassessment.

Lafleur J rejected an argument that “on the basis of Hickerty, [2007 TCC 482] that where an appellant has taken positive actions to appeal and where that appellant reasonably believes that the appeal has been validly filed, the one‑year grace period had stopped running,” stating (at paras 75, 77 and 84):

The Federal Court of Appeal in Carlson made it clear that the one‑year grace period is strict and cannot be waived. …

In view of the doctrine of the Federal Court of Appeal, the fact that the Appellant did not realize before August 2016 that the 2002 Reassessment was not appealed from can have no impact whatsoever on the calculation of the one-year grace period. … The fact that the CRA was mistakenly under the impression that the 2002 Reassessment was being appealed from and did not start collection proceedings before 2016 has no bearing on that conclusion. …

The wording of section 167 and paragraph 167(5)(a) of the Act is clear and unambiguous; the language of this paragraph does not allow me to conclude that the time stopped running because the Appellant was under the wrong impression that the 2002 Reassessment was being appealed from. …[I]t is clear that the one‑year grace period is not met and that the Application should be dismissed on that ground.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 - Subsection 169(1) taxpayer could not correct a clear error in appealing only one of the two taxation years in dispute 294
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 54 failure to appeal 2nd taxation year not curable through amendment 73

Paragraph 167(5)(b)

Cases

Bygrave v. Canada, 2017 FCA 124

taxpayer’s delay in bringing an application for extension was explained by his misapprehension that he had to secure documentary evidence before appealing

The Minister reassessed the taxpayer to treat a gain from the sale of a condo unit as on income account as well as to impose a s. 163(2) penalty. The taxpayer’s accountant filed an application for an extension of time to file the taxpayer’s notice of appeal pursuant to s.167(1) some 52 days after the expiry of the limitation period. Although the Justice lawyer conceded that the taxpayer had a reasonable substantive ground for appeal, the Tax Court dismissed the appeal on the basis that s. 167(5)(b)(ii) and (iii) had not been satisfied, as the Court was not persuaded that the application was made as soon as circumstances permitted and that it would be just and equitable to grant the application.

Pelletier JA found (at paras 11, 16, 19, 20 and 21):

… [T]he reason for the delay was the perceived need to obtain all the relevant documentation prior to filing a notice of appeal, a process which took some time.

In my view, the Tax Court did not direct its mind to the appropriate period when it considered whether Mr. Bygrave’s appeal had been brought as soon as circumstances permitted. …The Tax Court correctly noted that if “a taxpayer is late in filing a Notice of Appeal, the taxpayer must act with diligence to apply for an extension of time to appeal… . The Tax Court, however, concluded that Mr. Bygrave knew of the 90 day time limit and could have filed his notice of appeal within it. This conclusion shows that the Tax Court asked whether the circumstances permitted Mr. Bygrave to file a notice of appeal during the 90 day period, rather than asking whether, once that period had expired, he brought his application for an extension of time as soon as circumstances permitted. This is an error of law that warrants our intervention.

… The evidence is that Mr. Bygrave spent the period between the expiry of the 90 day period and the filing of his application for an extension of time gathering this documentary evidence.

… [T]he time to secure those documents [respecting the circumstances surrounding the sale] would be a circumstance explaining the delay in the bringing of the request for an extension of time. While those who have some knowledge of tax matters know that it was not necessary to have that evidence in hand prior to filing the notice of appeal, Mr. Bygrave did not know that.

…[T]he application for an extension of time was brought as soon as the necessary documents were in hand. As a result, I am satisfied that the application for an extension of time was made as soon as circumstances permitted.