Category Archives: Jurisdiciton

Taxpayer requests to Amend Returns

Download PDF

Taxpayer requests to Amend Returns

Newfoundland Transshipment Limited v. The Queen, 2013 TCC 259

The court, referring to the FCA decision in Armstrong v The Queen, 2006 DTC 6310, stated that a request to amend an income tax return does not necessarily result in a reassessment.  In Armstrong, the FCA stated at paragraph 8:

[8]   An amended return for a taxation year that has already been the subject of a notice of assessment does not trigger the Minister’s obligation to assess with all due dispatch (subsection 152(1) of the Income Tax Act), nor does it start anew any of the statutory limitation periods that commence when an income tax return for a particular year is filed and then assessed. An amended income tax return is simply a request that the Minister reassess for that year.

The MNR cannot be compelled to accept an amended return (Imperial Oil Ltd v R, 2003 DTC 179).  The court also noted that the TCC lacks the jurisdiction to compel the MNR to assess or to determine whether the MNR’s decision was unreasonable.  Finally, the court noted that it lacked jurisdiction to grant an extension of time to file Notices of Objection for statute barred years.

Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3

If you like this website, please share it with others.

Back To Top OR Home

Ashton v The Queen, 2012 TCC 353 (informal procedure)

Download PDF

 Jurisdicition of the TCC in relation to whether there was in fact a refund of tax to a taxpayer.

Ashton v The Queen,2012 TCC 353 (informal procedure)

One issue was whether the TCC has jurisdiction to determine whether excess amounts were refunded to the taxpayer, in addition to jurisdiction as to the amount of the excess refund.

On the basis of subsection 160.1(3) the TCC stated in obiter that it has express jurisdiction to decide if excess amounts were refunded to the taxpayer or not.

FACTS

In 2008, Money Mart e-filed a 2007 tax return in the taxpayer’s name and gave a refund in cash. Though the taxpayer was a money mart customer for 10 years, she had never filed a tax return with them. The taxpayer claims that her identity was stolen and that she never was involved with the e-file, and that she never received the refund.

ANALYSIS

The Crown argued that the TCC lacks jurisdiction over collection matters, and that notwithstanding section 160.1 of the ITA, the TCC can only determine the question of the amount of the excess refund not whether there was a refund or not.  (para 3).

The Court at paragraph 3 stated:

… my decision that this Court does have jurisdiction to determine whether, in the words of section 160.1 “an amount has been refunded to a taxpayer in excess” is largely moot. That wording in section 160.1, and the express conferral of appeal jurisdiction on this Court in subsection 160.1(3), indicates Parliament intended this Court to have jurisdiction to decide if excess amounts were refunded to a taxpayer.

The court said also:

I do not have to decide whether, based upon the statutory requirement the CRA must determine that an excess amount was refunded to a taxpayer, the Minister has the onus or burden of proof that the refunds were, in fact, paid to Ms. Ashton. It seems reasonable in the circumstances that it might. It is similarly not clear that the Minister should have the benefit of the assumptions being prima facie assumed correct since, in the case of identity theft, the information of who pretended to be a taxpayer is not within her particular knowledge – CRA may well be better situated to investigate. In any event, even if the taxpayer bears the usual burden of proof in this case, once she has denied her involvement, as a practical matter, the burden of persuasion shifts to the Crown if her evidence that it was not her appears credible. It would be difficult for a taxpayer in the situation to have much greater evidence to offer if it was not her.