Extension of Time to Appeal to Tax Court 

Roopchand v The Queen, 2016 TCC 279

The taxpayers were reassessed to deny their claim for the principal residence exemption.

At issue was whether the TCC should grant an extension of time to file a notice of appeal pursuant to S 167 of the Income Tax Act, and whether two of them should be granted an extension of time to file a Notice of Objection with the Minister pursuant to subsection 166.1(1).

ANALYSIS

Extension of time to file Notice of Appeal

Subsection 169(1) of the Income Tax Act permits a taxpayer who has filed a Notice of Objection to appeal to the Tax Court of Canada by filing a Notice of Appeal within 90 days of either the Minister sending the notice of confirmation to the taxpayer or after the Notice of Objection has been served on the Minister.

Where a taxpayer misses this deadline, an application for extension of time may be brought pursuant to ITA s 167 and the court may grant an order extending the time:

• the application to extend time is brought within one year after the expiry of the original time period;
• the taxpayer demonstrates that the taxpayer, during the regular time period, EITHER was unable to act or instruct another to act OR had a bona fide intention to appeal;
• It would be just and equitable to grant the application in light of the circumstances;
• The application was made as soon as circumstances permitted, and
• There are reasonable grounds for the appeal.

However, an unsupported allegation that the taxpayer did not receive the notice of confirmation is insufficient where the address the notice was mailed to was that of the taxpayer’s principal residence, the taxpayer’s accountant was copied on the letter and took action consistent with being aware of the confirmation.

Extension of time to file Notice of Objection

Subsection 165(1) provides a taxpayer the right to file a Notice of Objection, meeting certain criteria, within certain time periods:

• For Individuals other than trusts or graduated estate trusts, within the latter of EITHER one year after the taxpayer’s filing due-date for the year OR 90 days after the day the Notice of Assessment is sent; or
• For all other taxpayers, 90 days after the day the Notice of Assessment is sent.

Where a taxpayer misses the applicable deadline, an application can be made to the:

• Minister for an extension of time (s 166.1(1)) within one year after the expiry of the original period; and
• TCC for an order to extend the time, after an application is made under s 166.1, within 90 days after the latter of either the minister refusing the application or 90 days after the service of the application on the Minister.

However, uncorroborated claims that a taxpayer’s representative informed the taxpayer that Notice of Objection had been filed, or where there was no evidence that the taxpayer filed an application on the Minister to extend the time under 166.1, will not result in the Court granting the application.

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

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