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One Day Late Filing: Notice of Objection Dismissed by Tax Court!

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The recent decision of the Tax Court of Canada (“TCC”) in Refind Environment Inc. v. The King (2024 TCC 2) is a poignant reminder of the importance of filing deadlines.

In Refind, the TCC dismissed an application for an extension of time to file a Notice of Objection against assessments under the Excise Tax Act (“ETA”) because the Registrant was one (1) day late in filing their application for an extension of time to the Minister of National Revenue (the “Minister”)!

 As a result, the Registrant was left unable to challenge the underlying GST assessments.

Legal Framework

According to Subsection 301(1.1) of the ETA, a Registrant has 90 days from the date a Notice of Assessment is sent to file a Notice of Objection with the Minister.

If this 90-day period is missed, then section 303(1) of the ETA allows the Registrant to make an application to the Minister to extend the time for filing the Notice of Objection, provided that the Registrant does so within one year of the deadline for filing the original Notice of Objection.

If the Minister refuses the application, section 304(1) of the ETA allows for an application to the TCC to grant the application for an extension of time, but only where certain conditions are met, including that the original application to the Minister for an extension of time was submitted within that one-year deadline.

Time Period for Filing Explained

Essentially, a Registrant has a maximum of approximately 15 months to file a Notice of Objection against an assessment (the initial 90 days, plus a possible 1-year extension). However, there are important details and distinctions with respect to these timelines:

  • 90-day Deadline for filing Notice of Objection: Every Registrant has a right to file a Notice of Objection within 90 days of the date the Notice of Assessment was sent. Note that this deadline is exactly 90 days, not “3 months” as some people may erroneously believe.
  • 1-year Period to Apply for an Extension of Time: Beyond the 90-day deadline above, a Registrant no longer has a right to file a Notice of Objection unless either the Minister (under section 303) or the TCC (under section 304) grants an extension of time to file the Notice of Objection.

This means that filing beyond the 90-day deadline: (1) requires an additional Application for an Extension of Time addressing the relevant legal tests; and (2) always carries a risk that the Minister/TCC may reject the Application, leaving a Registrant unable to file an Objection!

Takeaways

The bottom line is that Registrants should always file their Objections (and their Appeals) within the prescribed statutory timelines (ideally well in advance of the deadline). The TCC is bound by the timelines prescribed in the legislation, and as Refind has shown, the TCC cannot make exceptions.

If you think you may have missed a statutory deadline, get legal assistance immediately!

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Guest Thursday, 29 February 2024

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