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Taxation law

The request for the remission of tax, interest and penalties, a lesser known option for the Taxpayer?

Dec 16th, 2020

By Philippe Brunelle

In the recent case of Mokrycke v. Canada (Attorney General)[1], a taxpayer applied for the judicial review of a decision of the Assistant Commissioner denying the taxpayer's request for the remission of tax, interest and penalties based on section 23(2) of the Financial Administration Act[2]. The Taxpayer’s objective while presenting request for remission is to ask the Minister to waive not only the penalties and interest, but also the taxes themselves.

This type of request, like similar provincial applications based on section 94 of the Tax Administration Act[3], is rarely considered by the courts.

Even rarer is a decision by virtue of which the Assistant Commissioner’s decision to refuse to recommend the relief applied for is reversed given that this type of application remains an extraordinary measure, as expressed by the Federal Court of Appeal in Fink v. Canada (Attorney General)[4].

In Mokrycke, the Taxpayer alleged, among other things, that he objected to notices of reassessment for years 2005 and 2006 but was unable to fully present his case to the officer assigned to process the objection and respond to the officer's questions. In the absence of representations by the Taxpayer and his representative, the notices of assessment were maintained by the objection officer.

According to the Taxpayer, during the objection process he encountered numerous problems of a personal nature, as did his accountant who ultimately withdrew from the file for personal reasons. Following such withdrawal, the taxpayer retained the services of a new accountant, who ultimately made no additional representations, leading to the rejection of the objection.

The Taxpayer subsequently took it upon himself to establish contact with the Canada Revenue Agency (the "CRA"), but never provided any additional documentation nor did the Taxpayer appeal the objection decision, resulting in the  Taxpayer having no further recourse to challenge the notice of assessment issued.

The Taxpayer, with the assistance of a lawyer and his first accountant, submitted a request for the remission of taxes, interest and penalties arising from the notices of reassessment.

According to the guidelines identified by the CRA, to benefit from a remission order a Taxpayer must be in one of the following situations (this list not being exhaustive):

- extreme hardship;

- financial setback coupled with extenuating factors;

- incorrect action or advice on the part of CRA officials; and

- unintended results of the legislation.

The Assistant Commissioner denied the Taxpayer's request on the basis that none of the four (4) criteria were met. This was the decision in relation to which the application for judicial review before the Federal Court was filed.

The Federal Court, applying the “reasonableness test” established by the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov[5], quashed the decision of the Assistant Commissioner. Indeed, the Court found that various logical flaws undermined the internal rationality of the decision.

One of the flaws identified by the Court was the fact that the Assistant Commissioner considered that the Taxpayer's file did not reveal that the CRA had made an error in its audit of the Taxpayer’s 2005 and 2006 tax years.

However, since the Taxpayer was alleging that certain circumstances prevented him from submitting evidence and arguments at the time of the objection and that this prevented him from demonstrating that the assessments were not properly based, the denial of the Taxpayer’s request based on the fact that the assessment still stands is contradictory. Where a Taxpayer alleges a defect that prevented him or her from making submissions, the Assistant Commissioner cannot blindly base his or her decision on the fact that in the absence of such submissions the assessment is still standing.

Another flaw put forward in the Assistant Commissioner’s reasoning is his disregard of the Taxpayer’s accountant’s situation, since the CRA usually equates an accountant's behaviour to that of the Taxpayer the accountant represents.

However, requests for remission orders give rise to exceptional circumstances presented by Taxpayers. That being the case, the CRA cannot blindly apply its guide but must consider the specific circumstances and arguments invoked. In the case at hand, since the situation relating to the Taxpayer’s first accountant was an integral part of the Taxpayer's exceptional situation, the Assistant Commissioner should have considered same.

In short, the Court recognized that an assessment maintained following an objection does not necessarily mean that the CRA was right to assess, and the specific circumstances of a case must be considered as part of a remission order application. Given these observations, the file was remitted to CRA for reconsideration by a different decision maker.

Given the exceptional circumstances we are presently facing, notably the confinement, increased unemployment and financial difficulties of individuals and businesses arising from the COVID-19 pandemic, it is conceivable that a greater number of remission order applications will be presented in the coming months and years.

If you believe that you are in a situation that could give rise to an application for a remission order, do not hesitate to contact our team of tax specialists who will be able to advise and assist you.




[1] 2020 FC 1027

[2] R.S., c. F-10

[3] RSQ, chapter A-6.002

[4] 2019 FCA 276, para. 1

[5] 2019 SCC 65