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Taxation law

DUPUIS c. L’AGENCE DU REVENU DU QUÉBEC (2021 QCCA 1061) : « PRESCRIPTION », WAIVER, INTEREST AND OTHER TIMING CONCERNS AT OBJECTION

Oct 12th, 2021

By Hyacinthe Huguet

In this case, the Quebec Court of Appeal provided a useful reminder of the rules governing the timing restrictions imposed on the Minister to issue notices of reassessment and reviewed some of the recourses available to taxpayers when faced with delays in the process of contesting notices of reassessment.

Facts

In October 2008, the ARQ began an audit of the Taxpayer as the expenses claimed by the Taxpayer represented a very big portion of their gross revenues from their law practice. The Taxpayer signed a waiver for the year 2005 which they later revoked in March 2009. 

In June of 2009, the Minister issued notices of reassessment for the Taxpayer’s years 2005 to 2007 inclusively.  These reassessments disallowed a large portion of the expenses claimed by the Taxpayer.  In August of 2009, the Taxpayer objected to these reassessments. 

More than three years later, the Minister rendered a ruling at objection in October 2012.  In December of 2012, following its ruling, the Minister issued notices of reassessment which allowed a portion of the expenses previously disallowed in the notices of reassessment issued in June of 2009.

In February 2013, the Taxpayer appealed the reassessments before the Court of Quebec.  Ultimately, largely due to a strike by the government’s lawyers at the time, the trial was delayed and finally held in February 2018, with the judgment rendered in November 2018, almost 10 years after the initial audit had begun.

Before the Court of Quebec, the Taxpayer had argued that the notices of reassessment issued in 2009 and 2012 were statute-barred and that they should be canceled because the Minister had violated the Taxpayer’s rights to be trialed within a reasonable time as provided by Section 11 of the Charter. 

The Quebec Court of Appeal’s decision

The Quebec Court of Appeal agreed with the Court of Quebec that the notices of reassessment issued in June 2009 were not statute-barred since the notices had been issued within the three-year limitation period (2006 and 2007) and because the Taxpayer had previously signed a waiver (2005) and agreed with the Court of Quebec’s reminder that section 11 of the Charter does not apply to a penalty imposed under the Taxation Act

Further, the Quebec Court of Appeal made the following important points that went beyond or ran contrary to the lower court’s decision:

  • The notices of reassessment issued in 2012 were also not statute-barred because the Tax Administration Act does not impose a time limit on the Minister to issue new notices of reassessment following notices of objection.
  • Similarly, article 2925 of the CCQ regarding the three-year prescription period does not apply to the Minister’s ability to issue notices of reassessment following a notice of objection filed by a Taxpayer.
  • Article 2888 of the CCQ does not cause the three-year limitation period for the Minister to reassess to start over following a waiver. Rather, the Minister can issue a notice of reassessment following a waiver at any point in time until the Taxpayer revokes that waiver.
  • Confronted with long delays at objection, the Taxpayer could have sought recourse via a request for Taxpayer relief or could have appealed the 2012 notices of reassessment before the Court of Quebec 180 days after having submitted notices of objection since no ruling had been rendered after that time.

While this case does not present a new interpretation of the law relating to the timing restrictions imposed on the Minister when assessing or reassessing a Taxpayer, it does provide an apt reminder and clarifies that the Minister is not restricted by any limitation period to issue notices of reassessment following a notice of objection filed by a Taxpayer. 

Unfortunately, the reality is the process at objection can sometime take years. Thus, taxpayers should consider appealing notices of reassessment before the Court of Quebec 180 days after having filed notices of objection if no decision has been rendered in their file.

Taxpayers can also apply (after the issuance of the notices of reassessment) for taxpayer relief to request that interest accrued on the tax debt be decreased if the delays were caused by the Minister’s handling of the objection file.