Words and Phrases - "file"
ConocoPhillips Canada Resources Corp. v. Canada (National Revenue), 2016 DTC 5016 [at 6588], 2016 FC 98, 2017 FCA 243 rev'd
The taxpayer (“ConocoPhillips”) claimed that it did not learn about a reassessment of its 2000 taxation year (which nullified a previous reassessment for the 2000 year which it had validly objected to) allegedly mailed on November 7, 2008 until April 14, 2010. Its Notice of Objection dated June 7, 2010 was rejected by the Minister on the grounds of untimeliness, and a decision of the Federal Court (2013 FC 1192) setting aside the decision of the Minister not to consider the objection was reversed by the Federal Court of Appeal (2014 FCA 297) on the grounds that its proper recourse was to appeal to the Tax Court under s. 169(1)(b) and demonstrate that its notice of objection was filed on a timely basis. Meanwhile, ConocoPhillips requested that the Minister, under s. 220(2.1), waive the requirement to file a notice of objection in respect of its 2000 tax year, which the Minister’s delegate denied on the basis that “the Minister does not have the discretion under subsection 220(2.1)… to waive the obligation to serve a notice of objection.”
In finding that the Minister had such discretion under s. 220(2.1), and before directing that the Minister reconsider the requested waiver, Boswell J stated (at paras. 49, 56):
The Minister’s arguments as to differences between the use of the word “file” [in s. 220(2.1)] and “serve” [in s. 165(1)] are not persuasive. The fact a notice of objection may be served should not prevent subsection 220(2.1) from applying to notices of objection. …
[T]he purpose of subsection 220(2.1) is to blunt the unfairness that sometimes arises by strict application of the filing and notice requirements in the ITA. The Minister’s discretionary power under subsection 220(2.1) should not be unduly limited or fettered through an unduly narrow interpretation which the Minister unreasonably adopted and applied in this case. …
Respecting an argument of the Minister (at paras. 57-58) that “subsection 165(3) explicitly requires a notice of objection before there can be a reassessment” and that “the discretion to waive a notice of objection under subsection 220(2.1) would be nonsensical due to lack of a remedy,” he stated (at paras. 58-59):
Subsection 165(3) does not state that without a notice of objection, the Minister shall not or cannot reconsider an assessment, and there are situations under the ITA where the Minister is explicitly given the power to reassess without a notice of objection. …
Moreover, subsection 220(2.1) specifically enables the Minister to request a document that has been waived. If the Minister does waive the requirement for a notice of objection, a notice of objection could subsequently be requested by the Minister and a reassessment could occur. …[S]hould the Minister in this case unreasonably refuse to exercise her jurisdiction and authority to waive the requirement for a notice of objection, ConocoPhillips could then challenge that refusal by way of judicial review in this Court.
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Income Tax Act - Section 165 - Subsection 165(1) | Minister can consider reassessment without Notice of Objection | 216 |
| Tax Topics - Statutory Interpretation - French and English Version | ambiguity in French version resolved through English version | 222 |
Sameden Oil of Canada, Inc. v. Provincial Treasurer of Alberta (1993), 102 DLR (4th) 125 (Alta. C.A.)
The taxpayer mailed his 1988 corporate tax return by registered mail from the United States on June 30, 1989, and the return was received by the respondent on July 13, 1989. In finding that the taxpayer had not complied with the requirement in the Alberta Corporate Tax Act that the return be filed with the Provincial Treasurer by June 30, 1989, the Court of Appeal affirmed the finding of Rawlins J. that the word "filed" is "clear and unequivocal and connotes the requirement of actual delivery before filing and therefore a mailed document is not considered 'filed' until it is received and not at the point of mailing".
| Locations of other summaries | Wordcount | |
|---|---|---|
| Tax Topics - Statutory Interpretation - Interpretation Act - Subsection 45(2) | 88 |