Section 335

Subsection 335(1)

See Also

Luxury Home Landscape Construction Inc. v. The Queen, 2021 TCC 4 (Informal Procedure)

internal CRA form referencing the Canada Post tracking number did not satisfy affidavit requirement – also ambiguity as to whether notice was addressed to the corporate taxpayer

The Respondent moved to quash the Appellant’s Notice of Appeal, filed on March 15, 2019, on the grounds that it had not been filed within 90 days of the mailing of a Notice of Confirmation on May 23, 2017 (which the Appellant asserted had never been received by it.) The Respondent, in reliance on s. 335(1), sought to establish the May 23, 2017 mailing date with an affidavit of the CRA Appeals Officer, which referenced having prepared a Notice of Confirmation, addressed to the Appellant “Attention: Raad Murad,” and having received back on May 24, 2017, from the CRA mailroom, a CRA “special mail services request form” form (attached to the Affidavit) containing a tracking number (which she described as the “Canada Post registered mail item number”- and also attached an email from Canada Post indicating that the registered letter had been mailed to Raad Murad and that there was no further record of this item after a delivery attempt on May 25, 2017.

In finding that the Respondent had no proven its assertion that the Notice of Confirmation had, for purposes of the 90-day requirement in s. 301(5), been sent by registered mail on May 23, 2017, and before quashing the Respondent’s motion, Russell J stated (at paras 22, 24 and 25):

I am troubled by two aspects of the Respondent’s motion. First, there is failure to comply with a requirement specified in subsection 335(1) for evidencing that a notice was “sent by registered or certified mail”. That requirement is the inclusion as an exhibit in a CRA officer’s affidavit of, “the post office certificate of registration of the letter or a true copy of the relevant portion thereof”. In my view none of the exhibits to MP’s affidavit … can reasonably be construed as being such a certificate or true copy of the relevant portion thereof. ...

… I cannot find that CRA’s “special mail services request form”, albeit presumably with a Canada Post “tracking number” stamped or affixed thereon, can reasonably be considered, “the post office certificate of registration of the letter or a true copy of the relevant portion thereof” per subsection 335(1). Thus subsection 335(1) has not been complied with. …

My second concern is that in the July 31, 2017 Canada Post email to MP …, the Canada Post Customer Service Team identifies the missing registered letter as, “. . . this Registered Letter mailed May 24/17 to Raad Murad.”… It is [the Appellant] that is the entity to which registered mail … was to have been sent. Whether that actually happened is put in doubt by the language of this Canada Post email, identifying Raad Murad as the entity to whom the registered letter was mailed. A copy of the address envelope enclosing the notice of confirmation was not put in evidence.

He also noted (at para. 24) that proof of the sending of the Notice of Confirmation by registered mail could have been “by the Respondent calling one or more witnesses to provide viva voce evidence based on personal knowledge” – but this was not done.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 244 - Subsection 244(5) CRA fails to establish the mailing date of an assessment due to not having a copy of a Canada Post Certificate of Registration 138

Subsection 335(6)

See Also

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

failure of official to confirm that the notice of assessment was included in a batch that had been accurately processed

The appellant alleged that she did not receive a notice of assessment denying her new housing rebate until a copy was provided to her by a CRA collections officer in August 2016, whereas CRA alleged that the notice had been mailed on January 11. 2013 (which, if that were the case, would have established that the appellant had missed the time limitation within which to apply for an extension of the time to object under ETA s. 303(7)(a).)

After accepting (at para. 5) testimony that the appellant had received an income tax notice of reassessment and a HST notice of assessment respecting the same condo purchase, Graham J went on to find, before quashing the Crown’s motion to quash the appellant’s appeal, that the Minister, on the other hand, had failed to establish under ETA s. 335(10) that an examination of CRA’s records established that the notice had been mailed in January 2013, stating (at paras. 8, 11):

…Mr. Neill [a manager in the Print to Mail Division at the CRA] relied on a senior programs officer named Stacey Dougay to provide him with … the number of the business client communications system cycle (the “BCCS cycle”) in which Ms. DaSilva’s notice of assessment was to be printed. … The problem is that Mr. Neill did not have personal knowledge of which BCCS cycle contained Ms. DaSilva’s notice of reassessment. Subsection 335(6) requires that, if the Minister wants to rely on an affidavit to prove mailing, the affiant must have charge of the appropriate records and must have reviewed them. …

… Ms. DaSilva was deprived of the opportunity to cross-examine anyone in respect of that issue even though Ms. Dougay is employed by the CRA and, in fact, works in the same office as Mr. Neill. … The Respondent could easily have obtained an affidavit from Ms. Dougay… .

Locations of other summaries Wordcount
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
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 93