Proper Court of Recourse – Non-Receipt of Notice of Assessment

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Proper Court of Recourse – Non-Receipt of Notice of Assessment

Canada (National Revenue) v ConocoPhillips Canada Resource Corp., 2014 FCA 297

The MNR claimed to have sent out a Notice of Assessment in 2008.  The Taxpayer claims not to have received  Notice of Assessment until 2010, and objected to the assessment within 90 days of the 2010 assessment.  The MNR did not consider the application on grounds that it was untimely.

The Taxpayer filed for judicial review with the Federal Court.  The FC in 2013 FC 1192, allowed the application and set aside the decision of the MNR not to consider the Notice of Objection.

The FCA, here, held that the Federal Court lacked jurisdiction to consider the application for judicial review.  The proper route was by appeal to the Tax Court of Canada under paragraph 169(1)(b) of the ITA, as it is within the TCC’s jurisdiction to determine whether the Notice of Assessment was in fact mailed and presumed to have been mailed (ITA s 244(14): See Walker v. Canada, 2005 FCA 393.  Alternatively, the taxpayer could also request that the TCC determine the question of timeliness of its objection before trial pursuant to Rule 58(1) of the Tax Court of Canada Rules (General Procedure), SOR/90-688a.

– Sas Ansari, JD LLM PhD (exp)

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