Tax Court of Canada Appeal if the CRA Never Answers Your Objection

You filed a notice of objection and months have passed with no decision. It is easy to feel stuck, waiting for a letter that may not come.

The law does not make you wait forever. This article explains when you can go to the Tax Court of Canada without a decision, how to start, and what to think about before you do.

This article covers Canadian federal tax law, which applies in every province.

The 90-day rule

The usual route is that you appeal after the Minister confirms the assessment or reassesses. There is an exception for silence. If the Minister has not notified you of a decision, you may appeal once 90 days have elapsed after service of your notice of objection.

You need not wait for CRA Appeals to decide. For GST/HST objections, the CRA states the wait is 180 days.

The Minister is expected to act promptly. On receiving a notice of objection, the Minister must with all due dispatch reconsider the assessment, vacate, confirm or vary it or reassess, and notify you in writing.

Some limits apply. You cannot appeal an issue on which you waived in writing the right to object or appeal, and a large corporation's appeal is limited to issues properly raised in its notice of objection.

Why you might choose to appeal, or keep waiting

Appealing is your choice, not a requirement. Filing starts a court process with its own steps and deadlines, so it helps to weigh the pros and cons.

• Reasons to appeal: the matter has dragged on and you want it in front of a court on a set track.
• Reasons to wait: a decision may still arrive, because the Minister must reconsider the assessment with all due dispatch and notify you in writing. Whether waiting makes sense in your case depends on your situation, so it is worth confirming with a lawyer.
• Either way, keep records of the date you served your objection, because the 90 days are counted from service.

How to start the appeal

A general procedure appeal is started by filing an originating document in the Registry of the Tax Court. The CRA says the Court must receive the notice of appeal within the time limit, and lists the ways to file: deliver, mail, fax or the Court's electronic filing.

If the dollar amounts are small, you may be able to elect the informal procedure. It applies where the total amounts in issue are $25,000 or less, or the loss in issue is $50,000 or less, and you elect it. It also applies where the only subject-matter is interest assessed under the Income Tax Act. If the amounts are higher, the Court orders the general procedure unless you elect to limit the appeal to those amounts.

Under the informal procedure, you may appear in person or be represented by counsel or an agent, and the Court is not bound by legal or technical rules of evidence. The notice of appeal sets out reasons and facts in general terms, the Minister files a reply within sixty days after the notice of appeal is transmitted, and the Court fixes the hearing date. Judgment must be rendered not later than ninety days after the hearing concludes, except in exceptional circumstances. An informal procedure judgment is not treated as a precedent for any other case.

In the general procedure, the Crown must file its reply within 60 days after service of the notice of appeal, and allegations of fact in your notice of appeal that are not denied in the reply are deemed admitted.

What happens if a decision arrives later

If the Minister later confirms or reassesses, a separate 90-day appeal period runs from the day the notice was sent to you. How that interacts with an appeal you have already filed is a technical question, so ask a lawyer before you act.

If you miss an appeal deadline, you may apply to the Tax Court for an extension. No order can be made unless the application is made within one year after the 90-day appeal period expires. You must show, among other things, that you were unable to act or had a bona fide intention to appeal, and that there are reasonable grounds for the appeal. Treat this as a last resort, not a plan.

What to do next

• Write down the date your notice of objection was served and count 90 days forward (180 days for GST/HST).
• Gather the notice of assessment, your objection and any correspondence with CRA Appeals.
• Ask CRA for a status update in writing and keep a copy.
• Check whether the informal procedure might suit the amounts in dispute.
• Speak with a tax lawyer before filing, so the notice of appeal states your issues properly.

Frequently asked questions