Can You Get a Tax Court Appeal Extension if You Missed the Deadline in Canada?

You disagreed with a CRA assessment, filed a notice of objection, and then received the CRA's answer. Months later you realize the window to go to the Tax Court of Canada has closed. That is stressful, but it is not always the end of the road.

This article explains the usual deadline, how an application to extend it works, the tests the Court applies, and what is different if the late step was the notice of objection rather than the appeal.

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

The usual deadline to appeal

After you serve a notice of objection, you can appeal to the Tax Court of Canada once the Minister has confirmed the assessment or reassessed. The appeal deadline is 90 days from the day the notice of confirmation or reassessment was sent to you.

The CRA says the Court must receive your notice of appeal within 90 days of the date on that notice, so mailing it on day 90 is not enough.

There is also an earlier route. If the Minister has not notified you of a decision, you may appeal once 90 days have passed after your notice of objection was served, without waiting for CRA Appeals to decide. For GST/HST objections the CRA states the wait is 180 days.

Applying for an extension of time

If you miss the deadline, you may apply to the Tax Court for an order extending the time to appeal, and the Court may impose terms it considers just.

The application sets out your reasons for the delay. It is filed with three copies of the application and three copies of the notice of appeal. The Tax Court sends a copy of each application to the office of the Deputy Attorney General of Canada.

In practice, this means you prepare the notice of appeal you would have filed on time and attach it to your application. A lawyer can help make sure the reasons for delay are clear and supported.

The one-year outer limit

No extension order can be made unless the application is made within one year after the 90-day appeal period expires. The CRA describes this as one year and 90 days from the confirmation or reassessment.

This limit is a hard cut-off in the legislation, so the sooner you act after noticing the missed date, the better your position.

The tests the Court applies

To obtain an extension, you must show all of the following:

• Within the 90 days, you were unable to act or to instruct someone else to act, or you had a genuine (bona fide) intention to appeal.
• It is just and equitable to grant the application.
• You made the application as soon as circumstances permitted.
• There are reasonable grounds for the appeal.

Whether your own situation meets these tests depends on the facts, such as what happened during the 90 days and what you did afterwards. A lawyer can tell you how they may apply to you.

A late objection is handled differently

If the step you missed was the notice of objection, the process is different. You first apply to the Minister (Chief of Appeals) under s. 166.1, within one year after the objection deadline.

You must show you were unable to act or had a genuine intention to object, that it is just and equitable, and that you applied as soon as circumstances permitted.

For context, individuals other than trusts, and graduated rate estates, generally have the later of one year after the filing-due date or 90 days after the notice of assessment was sent to object. Others have 90 days.

What to do next

• Find the date on your notice of confirmation or reassessment and count 90 days, then count one year beyond that.
• Write down what prevented you from filing, and when you first decided to appeal.
• Gather the notice, your objection and any correspondence with the CRA.
• Draft the notice of appeal you would have filed.
• Speak with a lawyer or accountant promptly, because the application must be made as soon as circumstances permit.

Frequently asked questions