Section 244

Subsection 244(4) - Limitation period

Cases

PS&E Contractors Ltd. v. The Queen, 89 DTC 5067 (Sask. C.A.)

"The knowledge must be the knowledge of the Minister personally and the knowledge of someone else cannot be substituted for it."

The Queen v. Print Three, 88 DTC 6315 (Ont. Prov. Ct.)

Marcotte was followed.

R. v. Les Habitations Perigord Inc., 88 DTC 6267, [1988] 2 CTC 64 (Que. C.A.)

A certificate was held to be defective because it only certified that the requisite evidence came to the knowledge of an authorized official, rather than to the knowledge of the Minister. Reference was made to the Marcotte decision, which was founded "sur la distinction entre le fait et le pouvoir, la connaisance étant un fait et non une fonction ou un pouvoir délégable."

Re Pica and The Queen, 85 DTC 5041, [1985] 1 CTC 73 (S.C.O.)

"Minister" in s. 244(4) includes his designee.

James v. The Queen, 84 DTC 6570, [1984] CTC 672 (S.C.O.), rev'd by 86 DTC 6432, [1986] 2 CTC 288 (Ont CA), briefly aff'd by 88 DTC 6273, [1988] 2 CTC 1, [1988] 1 S.C.R. 669

S.244(4) "leaves it entirely in the hands of the Minister to state when in his 'opinion' sufficient information was brought to his knowledge to justify prosecution. His opinion is in no way limited or fettered by the words of this section. There is no specific requirement that he have 'reasonable and probable cause' for the prosecution ... . There is ... no good reason to hold in this case in the absence of fraud, that the certificate of the Minister should not be admitted in evidence on the issue of the limitation period."

R. v. Simmons, 84 DTC 6171 (Nfld. Prov. Ct.)

A Minister's certificate was not invalid by reason of the fact that it was signed by the District Office Director of Taxation who certified as to his own knowledge rather than that of the Minister.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(2) 58

Fee et al. v. Bradshaw et al., 82 DTC 6264, [1982] CTC 201, [1982] 1 S.C.R. 607

S.18 of the Federal Court Act does not give the Federal Court the jurisdiction to prohibit the filing of an allegedly false certificate, because neither (1) the statement in a certificate of the day on which the evidence came to the Minister's knowledge nor (2) the filing of a certificate, entails a decision of an administrative nature or the exercise of a discretionary power. Those actions instead are to be regarded respectively, as (1) a simple statement of fact and (2) the use of a mode of proof. "Only to the extent that he makes an administrative decision or exercises a discretionary power could it be argued that the Minister of National Revenue ... may be subject to the superintending and reforming power of the Trial Division".

Usarco Ltd. v. A.G. Canada, 80 DTC 6308, [1980] CTC 484 (FCTD)

A certificate is not conclusive evidence of the assertions contained therein if it was made fraudulently. (Obiter)

Medicine Hat Greenhouse Ltd. and German v. R., 79 DTC 5091, [1980] CTC 114 (Alta. C.A.)

Assuming the absence of fraudulent intent or improper motive involved in specifying the date contained in the certificate, the certificate is conclusive evidence as to the date upon which the evidence justifying a prosecution came to the attention of the Minister. In addition, delay in initiating a prosecution which is not barred by a limitation period does not constitute an abuse of process.

Subsection 244(5) - Proof of service by mail

See Also

DaSilva v. The Queen, 2018 TCC 74 (Informal Procedure)

taxpayer’s testimony that she did not receive a notice of assessment accepted over a CRA affidavit to the contrary

Where a taxpayer alleges that she did not receive a notice of assessment, ETA s. 335(6) provides that an affidavit of a CRA official in charge of the appropriate records and stating that “an examination of the records shows that a notice of assessment was mailed … to a person … is evidence of [such] statement… .” (This provision is only somewhat similar to ITA s. 244(5).)

Graham J found that an affidavit by such an official (Mr. Neill) that a particular “business client communications system cycle” had ran without errors did not establish that the assessment had been mailed as he had not directly confirmed that the taxpayer’s notice of assessment was in that cycle - nor had the Crown provided an affidavit of someone working for Mr. Neill, who might have confirmed this point.

As Graham J also found the taxpayer’s testimony, that she had not received a copy of the notice of assessment until over three years following the time of its alleged mailing, to be credible, he went on to effectively find that the taxpayer had objected 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 300
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 162
Tax Topics - Income Tax Act - Section 166.1 - Subsection 166.1(7) - Paragraph 166.1(7)(a) testimony accepted that notice of assessment had not been received 89

Hamer v. The Queen, 2014 DTC 1168 [at 3602], 2014 TCC 218

CRA affidavit did not specifically address the mailing in issue

Woods J found that CRA's affidavit was insufficient to prove that the taxpayer's notice of assessment had been mailed. She stated (at paras. 13-14):

First, the key facts ... are not within the knowledge of Mr. Momoh [the officer who swore the affidavit]. ...

Second, the affidavit provides only a bare-bones description of [the mailing]. Mr. Momoh states ... that the notice of reassessment was released in DAS 75 but there is no detail as to how that conclusion was reached. ... In addition, the conclusion reached by Mr. Momoh in paragraph 10 provides no detail at all except that it is "upon review of the agency's records."

Woods J therefore granted the taxpayer's application to extend the time to file a notice of objection.

Skalbania v. The Queen, 2009 DTC 2066, 2009 TCC 576

The Minister was found to have reassessed the taxpayer within the normal reassessment period when on the last day of that period CRA mailed the notice of reassessment by registered mail to the proper address of the taxpayer, notwithstanding that the envelope was not delivered to the taxpayer.

In commenting on the rebuttable nature of the presumption in s. 244(5), Hershfield, J. stated (at para. 36):

"What is rebuttable here is not the delivery and registration of the notice to Canada Post. Evidence that the envelope was empty or contained something other than the notice would, for example, defeat the evidence of sending the notice."

Subsection 244(7) - Proof of failure to comply

Cases

Cholodniuk v. R., 92 DTC 6168 (Sask. C.A.)

Because a common law trial judge has not only the right but also the duty to control the evidence so as to ensure a fair trial, a judge has the discretion to require the Crown to produce the affiant for cross-examination. Here, however, the trial judge rightly declined to do so because the accused had not made out any grounds for doing so.

Furthermore, s. 244(7) is not contrary to s. 11(d) of the Charter.

A.G. (Canada) v. Romeo's Trucking Ltd., 80 DTC 6238, [1980] CTC 278 (Sask. D.C.)

The S.244(7) presumption was rebutted by testimony of the taxpayer's accountant that he had mailed the taxpayer's return on a timely basis.

Subsection 244(9) - Proof of documents

Cases

Aztec Industries Inc. v. The Queen, 95 DTC 5235 (FCA)

Given that the only documentary evidence the Minister was able to provide by way of affidavit were three "final requests for payment" reciting that Revenue Canada had not yet received payment for the amounts for which "you were recently assessed", and given that there is no burden of proof resting on the taxpayer until the Minister establishes the sending of the notices of assessment, an application by the taxpayer for an extension of time to respond to the alleged notices of assessment was dismissed on the ground that their existence had not been established.

Subsection 244(10) - Proof of no appeal

See Also

Sicoli v. The Queen, 2013 DTC 1167 [at 917], 2013 TCC 207

Hershfield J found that the Minister was unable to rely on s. 244(10) in respect of 17 assessments that had purportedly all been mailed in 2009, as the circumstances around the mailing were clearly not part of CRA's usual mailing practices. Hershfield J stated that "the evidence in this case is haunted by a degree of hurried carelessness on the part of the CRA that strongly suggests the unreliability of evidence that relies on routine or ordinary practices" (para. 14).

Poulin v. The Queen, 2013 DTC 1102 [at 545], 2013 TCC 104

Hershfield J found that the Minister's affidavit was inadequate to establish under s. 244(10) that the taxpayer's Notice of Objection had been filed after the applicable deadline, chiefly because the affidavit dealt with the wrong tax centre. The Minister's affidavit was based on the timestamp for the Notice's arrival at the Burnaby-Fraser Tax Services Office, rather than the tax centre in Surrey, BC where the taxpayer had sent the Notice. The taxpayer's own testimony as to the mailing date was credible. Hershfield J therefore granted the taxpayer's application to extend the time to file a Notice of Objection.

In reaching this conclusion, Hershfield J noted that the situation was analogous to Carcone, which dealt with a Notice of Assessment. Hershfield J stated (at para. 27):

The onus is not different in regard to the date of receipt of a notice of objection. Only the CRA would be possessed of such information.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Onus 149

Carcone v. The Queen, 2012 DTC 1032 [at 2651], 2011 TCC 550

The taxpayer's application to extend the period to file notices of objection was denied because the period had not yet commenced. The Minister was unable to prove that a notice of assessment had been communicated to the taxpayer. Apart from the taxpayer's own evidence indicating that no such communication had been received, the Minister had not met the requirements to rely on s. 244(10) - the CRA officer testifying was not the officer in charge of the taxpayers' records. The officer's testimony regarding whether the notices of assessment had been mailed was therefore disregarded as hearsay.

Graham v. The Queen, 92 DTC 1012 (TCC)

After paraphrasing s. 244(10), Bowman J. stated (p. 1014):

"Such evidence is obviously not irrebuttable and in any event the evidence of a departmental official that he has been unable to find something is evidence of just that and nothing more - that he has been unable to find it. It forms no basis by itself for striking out a notice of appeal."

Subsection 244(13) - Proof of documents

Cases

The Queen v. Ehli, 99 DTC 6505 (Alta CA)

A demand made pursuant to s. 231.2(1)(a) that contained a signature stamp affixed by an employee of the CCRA who had been authorized by the director-taxation to prepare an issue the document was validated by s. 244(13).

Swyryda v. The Queen, 81 DTC 5109 (Sask QB)

The signing of a demand for information by an official other than the Director-Taxation (the Director-Taxation being the officer authorized by regulation 900 to exercise that duty) was cured by S.244(13). "Nothing in that section says that the document must be personally executed by someone specifically designated by the Minister pursuant to the regulations".

Israel v. The Queen, 79 DTC 5418, [1979] CTC 468 (FCTD)

A document described as a "notice of assessment" on which the printed name "E.B. ARMSTRONG" appeared over the title of "DEPUTY MINISTER OF NATIONAL REVENUE FOR TAXATION", was authenticated by s. 244(13). [C.R.: Department of Natural Revenue Act - 2(1)]

Subsection 244(14) - Mailing or sending date

See Also

236130 British Columbia Ltd. v. The Queen, 2006 DTC 2053, 2005 TCC 770

In finding that a notice of reassessment that the Minister mailed to the wrong address within the six-month period referred to in s. 152(4.1) should not be treated as being made within that period, Bell J found that a notice of assessment mailed to the wrong address could not be considered to have been mailed for the purposes of s. 244(14). With respect to a subsequent notice of reassessment that allegedly was mailed within the six-month period, Bell J. noted that although the Minister produced evidence of mailing procedures, no evidence of the date of mailing of the notice of reassessment was produced, with the result that the Minister had failed to meet the onus of persuading the Court that the taxpayer had been validly reassessed.

VIH Logging Ltd v. The Queen, 2004 DTC 2090, 2003 TCC 732

After finding that an assessment of the taxpayer had been made when the assessment was picked up by a courier for delivery, Woods J. went on to indicate that he did not wish to decide on a submission that the assessment, in any event, would have been deemed to be made at the time of pick-up on the basis that delivery by courier constituted mailing as he was reluctant to make a finding on whether "mail" included courier delivery.

McIntyre v. MNR, 93 DTC 999 (TCC)

Notices of reassessment that were sent by registered mail by the Minister were returned by the post office, with the envelopes marked "unclaimed". After the period for reassessment expired, Revenue Canada sent out the notices of reassessment by ordinary mail with an explanation that the notices, when originally mailed, had been undeliverable "due to an address change". In fact, the taxpayer at all relevant times had been at the same address.

In these circumstances, Teskey J. found that "the onus is on the Minister to prove that the Notices were sent to the proper address", which he had failed to do. Accordingly, the taxpayer had not been reassessed within the period for doing so.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(2) 114

Everett's Truck Stop Ltd. v. The Queen, 93 DTC 965 (TCC)

The assumption by another corporation ("Polar Oils") of the obligation of the taxpayer to pay $119,658 in consideration for the taxpayer's agreement to pay four cents per litre more for diesel fuel purchased by it from Polar Oils until the total overpayments amounted to $119,658, constituted an inducement under s. 12(1)(x). The amount of the inclusion under s. 12(1)(x) was the full amount rather than the amount of additional payments made by the taxpayer to Polar Oils in the taxation year.

No relief was available under s. 13(7.4) given the absence of a timely election.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(x) inducemnt to purchase product for more 92

Subsection 244(15) - Date when assessment made

Cases

Skalbania v. The Queen, 2009 DTC 2066, 2009 TCC 576

The Minister was found to have reassessed the taxpayer within the normal reassessment period when on the last day of that period CRA mailed the notice of reassessment by registered mail to the proper address of the taxpayer, notwithstanding that the envelope was not delivered to the taxpayer.

McGowan v. The Queen, 95 D.T.C 5337 (FCA)

The taxpayer had failed to rebut the presumption of due issuance created by s. 244(15) by any evidence to the contrary.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 166.2 - Subsection 166.2(1) 40

Subsection 244(16)

See Also

Aubrey Dan Family Trust v. Minister of Finance, 2016 ONSC 3801, aff'd 2017 ONCA 875

form bearing CRA insignia purported to be prescribed form

A purported Alberta trust which wanted to have more time to make submissions to CRA that it was not resident in Ontario provided a related waiver on the prescribed (T2029) federal form. When it was ultimately reassessed for Ontario income tax (with the previously assessed Alberta tax being reversed) it unsuccessfully argued that the waiver was invalid because the T2029 form did not refer to the fact that it was a prescribed form for provincial purposes.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Ontario - Taxation Act 2007 - Section 158 federal form with CRA insignia purported to be a prescribed form 328
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) original assessment not dealing with Ontario tax starts the normal Ontario reassessment period 281

Subsection 244(20)

See Also

Menzies v. The Queen, 2016 TCC 73 (Informal Procedure)

notice provided to a GP is irrebuttably notice to all the limited partners

The taxpayer was a limited partner in Grosvenor, a limited partnership. Following a Notice of Determination by the Minister to reduce the net business loss of Grosvenor for its 2001 fiscal period, the Minister and the Grosvenor general partner entered into a settlement agreement, following which the Minister issued a Notice of Redetermination. The taxpayer argued that as she had not received the Notices of Determination and Redetermination as required under s. 152(1.5), a resulting reassessment of her was invalid.

Lafleur J found that as The Queen v Shafer, Docket: A-414-98, 2000 DTC 6542 had determined that the corresponding ETA provision was “absolute and does not create a rebuttable presumption,” s. 244(20)(b)(ii)(A) established that as the Grosvenor general partner had received the Notices of Determination and Redetermination on a timely basis, of the Act, “each limited partner of Grosvenor, including the Taxpayer, is deemed to have been provided with said Notices.”

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(1.6) receipt of notice of redetermination of loss by limited partner not relevant 148

Administrative Policy

18 October 2016 Internal T.I. 2016-0640321I7 - Subsections 152(1.5) and 244(20)

notice of determination need not be sent to each partner

Does the presumption in s. 244(20) supersede the obligation stated in s. 152(1.5) to send a notice of determination to each person who was a member of a partnership during the relevant fiscal period? The Directorate responded:

As the intention of subsection 244(20), according to the Department of Finance explanatory notes, is to provide “a more efficient manner in which to administer and enforce the Act”, we have no trouble concluding that it is intended to apply for the purposes of subsection 152(1.5), notwithstanding the slight discrepancy in the wording, i.e. the use of the word “send” in subsection 152(1.5) and the word “provided” in subsection 244(20). [A] similar conclusion was arrived at in…Menzies….

[S]ubsection 244(20) relieves the Minister from its obligation to send a notice of determination to each person who was a member of the partnership during the fiscal period covered by the notice of determination where the notice of determination is mailed to, served on or otherwise sent to the partnership at the latest known address of the partnership.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(1.5) requirement satisfied by delivery to partnership address 25