Section 172

Subsection 172(1)


The Queen v. Lehndorff Realty Developments Ltd., 86 DTC 6610, [1987] 1 CTC 42 (FCTD)

On an appeal from a Tax Court decision, the onus is still on the taxpayer to displace the presumption of validity of the assessment even if the taxpayer won in the Tax Court.

Sedgewick Co-operative Association Ltd. v. The Queen, 83 DTC 5455, [1984] CTC 14 (FCTD)

Although the Minister is precluded from asking that taxes be set by the Court at a higher level than they were in his assessment, he is not precluded from simply asserting that an appeal by a taxpayer from an assessment should fail because the law, if anything, would require a higher assessment than the one being appealed from.

Stubart Investments Ltd. v. The Queen, 81 DTC 5120, [1981] CTC 168 (FCA), rev'd 84 DTC 6305, [1984] CTC 294, [1984] 1 S.C.R. 536

rev'd on other grounds, 84 DTC 6305, [1984] CTC 294, [1984] 1 S.C.R. 536

An appeal from a decision of the Tax Review Board is a trial de novo. However, the fact that the Federal Court justice "resorted to the convenient expedient of referring to the facts as found by the Tax Review Board rather than himself detailing his findings of fact, other than those to which he made specific reference, does not indicate ... that he did not understand that he must decide the appeal on the evidence before him".

The Queen v. Lavers, 78 D.T.C 6230, [1978] CTC 341 (FCTD)

Since an appeal by the Crown from a decision of the Tax Review Board is by way of trial de novo, the onus is on the taxpayer to establish the correctness of the Board's decision.

Gillis v. The Queen, 78 DTC 6103, [1978] CTC 44 (FCTD)

The letter containing the judgment of the Tax Review Board was sent to the taxpayer on August 12, 1976 by registered mail, and was returned with the notation that it was unclaimed. However, a letter sent by ordinary mail on November 4, 1976 was received by the taxpayer.

The 120 day period was held to commence from the date of mailing by the Registrar of the first letter.

The Queen v. Gary Bowl Ltd., 74 DTC 6401, [1974] C.T.C 457 (FCA)

Although on an appeal to the Tax Review Board from a nil assessment, there was no relief that the Board properly could grant, that itself did not go to the jurisdiction of the Board to deal with the appeal from the nil assessments. The Trial Division "accordingly had jurisdiction to entertain the Minister's appeal to it from the decision of the Tax Review Board and to hear and maintain the objection that the respondent had no right of appeal from the 'nil assessments'."

Subsection 172(2)


Lornex Mining Corp. Ltd. v. MNR, 88 DTC 6399, [1988] 2 CTC 195 (FCTD)

The court had no jurisdiction to entertain an appeal from a "nil" assessment, notwithstanding that $172,668 in provincial tax was owing, because the Court had no jurisdiction to entertain an appeal from an assessment of provincial tax.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 38

The Queen v. Bowater Mersey Paper Co. Ltd., 87 DTC 5382, [1987] 2 CTC 159 (FCA)

After the Minister reassessed the taxpayer's 1981 and 1982 taxation years on January 4, 1984 by reclassifying class 29 properties as class 2 properties, and then on March 6, 1984 issued "nil" assessments for those years by carrying back investment tax credits earned in the taxpayer's 1983 year, the taxpayer in April of 1984 filed notices of objection to the January 4, 1984 notices of reassessment. Since the March 6, 1984 reassessments replaced the January 4, 1984 reassessments, the January 4, 1984 assessments "were no longer in existence and could not, for that reason, be the subject of an appeal."

It was also noted that a taxpayer has no right of appeal from alleged errors made by the Minister in calculating the tax owed by him. "The right of appeal that exists is from the result of the calculation made by the Minister, not from those calculations."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 133

Gibbs v. MNR, 84 D.TC. 6418, [1984] CTC 434 (FCTD)

An assessment made against a taxpayer can only be challenged pursuant to the provisions of section 169 and following of the Act. An application under section 18 of the Federal Court Act for an order quashing assessments, was dismissed.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 39

MNR v. Parsons and Flemming, 84 DTC 6345, [1984] CTC 352 (FCA)

It follows from S.29 of the Federal Court Act that the only way in which assessments made against taxpayers can be challenged is by following the procedures set out in Division J. An assessment cannot be quashed by the Court pursuant to s. 18 of the Federal Court Act.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 54

Millers Credit Jewellers Ltd. v. The Queen, 84 DTC 6205, [1984] CTC 218 (FCTD)

Although a "Notice of Reassessment" was cryptic when read by itself, it referred to "the net income previously assessed", and an examination of the previous Notice of Reassessment (which had been received by the taxpayer before it filed its Notice of Objection) would have revealed in some detail the adjustments that were being made to the taxpayer's income. The second Notice of Reassessment accordingly was valid, and the taxpayer's argument failed - that no notice of confirmation or reassessment should be regarded as having been made after serving the Notice of Objection, so that the 90-day time period under s. 172(2) had not yet begun to run.

Midwest Oil Production Ltd. v. The Queen, 82 DTC 6092, [1982] CTC 107 (FCTD), aff'd 83 DTC 5304, [1983] CTC 338 (FCA)

A taxpayer is not prevented from raising an issue on an appeal to the Federal Court only because the issue was not raised in the taxpayer's notice of objection or, if applicable, before the Tax Review Board. It is the Minister's assessment, not his reasons for it, that is the subject matter of the appeal.

MacIsaac v. The Queen, 83 DTC 5258, [1983] CTC 213 (FCTD)

A statement of claim requesting the issuance of a writ of mandamus (directing the Minister to exclude $40,411 from the taxpayer's 1979 return) and of prohibition (prohibiting the further collection of 1979 taxes) was thus in substance a purported appeal from the notice of assessment for the 1979 taxation year. The appeal thus was a nullity because the taxpayer had not filed a notice of objection. Furthermore, the taxpayer could not rely on alleged commitments made by Department employees after the time for filing a notice of objection had expired.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 90

Kingsdale Securities Co. Ltd. v. The Queen, 74 DTC 6674, [1975] CTC 10 (FCA)

The court should not consider an argument that is raised for the first time after the cases for both parties have been closed at trial "unless it is satisfied beyond all reasonable doubt that all requisite evidence had been adduced to enable the Defendant to rebut the Plaintiff's new position." Here, the Court of Appeal was not satisfied that the Crown had adduced all requisite evidence bearing on the taxpayer's fresh contention that alleged trusts were declaratory trusts rather than settled trusts.

Subsection 172(3) - Appeal from refusal to register, revocation of registration, etc.

Paragraph 172(3)(a)


Athletes 4 Athletes Foundation v. Canada (National Revenue), 2020 FCA 41

Minister required to produce any irrelevant material (e.g., on other Foundations) before her in her decision

The appellant Foundation appealed from the refusal of the Minister to register it as a Canadian amateur athletic association on the grounds inter alia that the Minister had considered “irrelevant information in comparing the [Foundation] to other applicants and existing registered CAAAs” (para. 1). It sought an order under Rule 318(4) for further disclosure.

Laskin JA found that the Rules merely required the Minister to produce the documents which were in the hands of the decision-maker when the decision was made – and not to provide various other requested documents (e.g., the constating documents of all registered CAAAs at the time of the decision).

However, the affidavit of the CRA decision maker stated that “all relevant materials upon which the CRA relied … have been produced.” Laskin JA stated (at para. 28):

The affidavit evidence does not foreclose the possibility that the Minister used irrelevant material relating to the other entities.

He ordered the Minister “to produce any material apart from that already disclosed that was before her when the decision was made, with the exception of properly redacted information” (para. 29)

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Rules - Rule 318 - Rule 318(4) CRA is ordered to produce any irrelevant material (e.g., re other Foundations) that was before it when rejecting a registration request 359

United Scottish Cultural Society v. Canada (Customs and Revenue Agency), 2004 DTC 6660, 2004 FCA 324

An application to introduce new evidence on appeal to the Court of Appeal by filing an affidavit of an individual was rejected given that (in contrast to Humanist Association of Toronto v. The Queen, 2002 DTC 7380) the applicant here was the source of the information which it now sought to introduce, and such information ought to have been tendered in the first instance.

Scarborough Community Legal Services v. The Queen, 85 DTC 5102, [1985] 1 CTC 98 (FCA)

As a matter of natural justice or of procedural fairness, there is no obligation on the Minister to invite representations or conduct a hearing before reaching a decision on an application for registration of a supposed charity, where all the materials before the Minister were provided by the applicant. "[W]hile the precise ground of refusal was not know to the Appellant, it must be taken to have been aware that to qualify as a charity it must meet the statutory and common law requirements for its characterization as such". (per Urie, J.).

Renaissance International v. MNR, 83 DTC 5024, [1982] CTC 393 (FCA)

An "appeal" pursuant to s. 172(3) is an appeal in the ordinary sense of the word rather than an appeal de novo such as those provided for in s. 175 to the Trial Division. "It follows, in my view, that the decision of the Minister to send a notice of revocation under subsection 168(1) must be arrived at in a manner enabling the Minister to create a record sufficiently complete to be used by this Court in deciding the appeal." In addition, the appellant has the right to be treated fairly both by the tribunal of first instance (i.e., the Minister) and by the appellate court, and the appellate court accordingly cannot cure the failure of the tribunal below to comply with the requirements of natural justice.

Paragraph 172(3)(a.1)


Colel Chabad Lubavitch Foundation of Israel v. Canada (National Revenue), 2022 FCA 108

there is no reasonable apprehension of bias where an appeals officer only had minor involvement in a prior taxpayer audi

The appellant, a charitable organization, sought to have the Court set aside CRA’s 2019 Notice of Confirmation of its 2016 revocation of its registration, which had been made on 10 grounds. Including the appellant’s participation in a donation scheme under which it indirectly returned to a donor approximately 80-90% of the $3.5 million for which he had been receipted and various failures to properly control and document its purported charitable activities. The notice of revocation was issued following CRA’s second audit of the appellant, and the identified grounds mostly related to the second audit period, except that it was only during the second audit that the above donation scheme, which had occurred during the earlier period covered by the first audit, was discovered.

The principal oral argument of the appellant was that there was a reasonable apprehension of bias arising from the involvement of Mr. Racine, a Directorate employee, in the first audit and his assignment as the appeals officer in the appeal from the Notice of Intention to Revoke that was issued as a consequence of the second audit. In rejecting this submission, Gleason JA stated (at paras. 41, 44):

[T]he involvement of Mr. Racine in the first audit was minimal and, to the extent he has been shown to have actually examined issues during the first audit as opposed to merely providing general advice or reviewing others’ drafts, his examination was related to issues surrounding the scholarships provided by the appellant. Scholarships were not at issue in the second audit or the appeal. …

Mr. Racine cannot be said to have sat in appeal from a decision he made.

In going on to dismiss the appeal, Gleason JA stated (at para. 50):

The most significant justification for revocation of the appellant’s registration as a charitable organization was doubtless its participation in the donation scheme with Dr. Sokol. … Dr. Sokol’s evidence was clear, compelling, and demonstrated the appellant’s knowing involvement in the scheme. …

Although the above was sufficient in itself to result in the dismissal of this appeal, for the sake of completeness Gleason JA also addressed the other arguments, finding that the organization “had inadequate control over the distribution of funds in Israel” (para. 60); it did not ensure that that the agent used the charity’s resources to carry out activities on the charity’s behalf (paras. 63 and 44); it failed to keep accurate books and records by falsifying minutes of Board of Directors’ meetings and not maintaining documentation to support travel expenses, remuneration paid to fundraisers, activities in Israel and the donation scheme (para. 65); and it failed to file accurate information returns (paras. 74 and 75).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 168 - Subsection 168(1) - Paragraph 168(1)(d) issuance of inflated charitable receipt was supported by the record 163

Humane Society of Canada for the Protection of Animals and the Environment v. Canada (National Revenue), 2015 FCA 178

no implied procedural rules in s. 172(3)(a.1)

Before confirming the reasonableness of CRA's decision to revoke the Appellant's registration, Ryer JA rejected a submission (at para. 42) that s. 172(3)(a.1) required the Minister to deliver a complete record of of all documents and materials available to the Appeals Directorate as well as those actually considered, stating (at paras. 47-48):

This paragraph simply provides a right of appeal from the Confirmation Decision… . The Appellant's argument essentially challenges the sufficiency of the Rules as construed by Justice Sharlow in Humane Society 2013.The Appellant did not appeal Justice Sharlow's decision or otherwise dispute its merits before us. Accepting the Appellant's argument would have the effect of construing paragraph 172(3)(a.1) so as to implicitly provide the procedural outcome that Justice Sharlow rejected when she considered Rules 317 and 318, the directly applicable procedural dispositions.

See summaries under s. 168(1)(e) and s. 189(7).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 168 - Subsection 168(1) - Paragraph 168(1)(e) personal expenses were intermingled in accounting records 238
Tax Topics - Income Tax Act - Section 189 - Subsection 189(7) availability of s. 188.1(4) penalty did not preclude deregistration 98