The decision in the ConocoPhillips case has big implications for you and your clients who want to fight Canada Revenue Agency assessments. In Canada (National Revenue) v. ConocoPhillips Canada Resources Corp., 2017 FCA 243, the Federal Court of Appeal decided that a taxpayer must submit a Notice of Objection within the time prescribed by law to enter the objections regime.
The Objections Regime
Once your client submits a tax return, the CRA may select that return for an audit. If the CRA determines that additional taxes should have been paid, the agency issues a Notice of Assessment for the additional amount. You and your client can appeal the assessment by filing a Notice of Objection. The Income Tax law gives your client 90 days to file this notice or request an extension. If your client’s objection is accepted for review, the client enters the objections regime.
The objection is assigned to an appeals officer who works independently from the auditor who issued the original assessment. The appeals officer reviews the objection and supporting documents and issues a decision for or against your client. If you and your client disagree with the outcome, the next step is contesting the issue in the Tax Court of Canada.
The CRA audited a tax return for ConocoPhillips and issued a Notice of Assessment. ConocoPhillips was involved in an objection that would have affected its income and assessment for the same tax year and did not file a Notice of Objection or request an extension within the time specified in subsection 166.1(7) of the Income Tax Act. The CRA issued a reassessment before the first dispute was settled, which ConocoPhillips paid, and ultimately resulted in an overpayment.
Since the time to file a Notice of Objection had expired, ConocoPhillips applied for a waiver under subsection 220(2.1) of the Act. This subsection authorizes the Minister of National Revenue to waive requirements pertaining to forms and documents as long as the taxpayer provides them on request. The Minister refused, stating subsection 220(2.1) did not apply to Notices of Objections, which are specifically addressed under subsection 166.1(7).
ConocoPhillips sought judicial review in the Federal Court, which ruled the Minister had applied an interpretation that was far too narrow. The CRA appealed this decision, with the Appeals Court ruling that:
- The Minister does not have discretion to admit a taxpayer into the objections regime under subsection 220(2.1)
- Taxpayers must comply with the strict time limits set out in the Act.
The decision in the ConocoPhillips case makes it clear that you and your client must submit a written Notice of Objection within the time written into the law. Clients who fail to meet this deadline or file an extension in time are essentially blocked from entering the objections regime.
You can assist your client with completing the form published by the CRA for filing objections, Form T400A – Notice of Objection. Filling out this form completely provides the CRA with enough information to accept your client’s request for an objection and has space for the client reason, You can also help your client by gathering and including the documentation to support the appeal. Even if your client can’t come up with all of the documentation they need to win, sending in a notice before the deadline can buy some time and allow the appeal to be accepted for review.