Executive Summary: Key Legal and Evidentiary Issues

• Jurisdiction turned on whether statutory conditions under ss. 303–304 ETA were satisfied, particularly timing and proper notice of the Minister’s decision.

• Non-compliance with statutory mailing requirements (registered or certified mail) raised questions about whether limitation periods were triggered.

• Dispute centered on whether assessment and decision notices were properly “sent,” including via electronic CRA account communications.

• Evidentiary burden under the Mpamugo framework required assessing credibility of the taxpayer’s assertion of non-receipt versus CRA proof of sending.

• Authorization of a tax representative to receive electronic communications impacted whether notice to the representative constituted notice to the taxpayer.

• Ultimate issue involved statutory limitation periods for objections and extensions, with the one-year deadline proving determinative despite procedural irregularities.

Facts of the case

The case concerns Web Listings Inc., which applied under section 304 of the Excise Tax Act for an extension of time to file notices of objection to GST/HST assessments relating to multiple reporting periods between 2018 and 2020. The Minister issued assessment and reassessment notices dated May 14, 2021, and July 28, 2021.

Marc Carter, the principal of the applicant, relied on Ms. McIver as the company’s representative for tax matters. She handled accounting and GST/HST filings and had been given authority over the company’s CRA account. Evidence demonstrated that the applicant had registered for electronic communications with the CRA in February 2021 using Ms. McIver’s email address.

No notice of objection was filed within the 90-day period required under the statute. Instead, an electronic objection was filed on July 24, 2023. The CRA Appeals Division issued a decision letter dated September 13, 2023, indicating that the objection could not be accepted because it was late and that an extension of time could not be granted, as the request was beyond the one-year deadline. The decision letter was sent by regular mail rather than by registered or certified mail. The applicant filed its application to the Tax Court on January 22, 2024.

Jurisdiction and statutory framework

The Court considered whether it had jurisdiction under section 304(1) of the ETA. This required satisfaction of certain conditions precedent, including the timing of the application relative to notification of the Minister’s decision.

Section 303(5) requires that notice of a decision on an extension request be sent by registered or certified mail. The evidence established that the decision letter was sent by regular metered mail. The Court concluded that this did not comply with the statutory requirement.

As a result, the 30-day limitation period for applying to the Court did not begin to run. The Court held that it had jurisdiction under section 304(1)(b) because more than 90 days had elapsed after the application to the Minister without proper notification of the decision.

Whether the assessment notices were sent

The applicant asserted that it did not receive the assessment notices. The Court applied the framework requiring assessment of credibility followed by consideration of whether the Crown proved that the notices were sent.

The Court accepted that Mr. Carter did not personally receive the notices. However, evidence showed that the applicant had authorized Ms. McIver to receive communications through the CRA’s My Business Account. The CRA produced evidence that the assessment notices were made available in that online account on May 14, 2021, and July 28, 2021, and that email notifications were sent to the registered email address.

The Court drew an adverse inference from the applicant’s failure to call Ms. McIver as a witness and concluded that she received the notifications. It determined that the notices were sent in a manner authorized by the applicant and that any failure by the representative to act on them could not be attributed to the Minister.

Discussion of electronic notice provisions
The Court considered provisions under section 335 of the ETA governing proof of sending and electronic communication. It noted that electronic notices may be considered sent when posted to a taxpayer’s secure account and accompanied by email notification, subject to statutory conditions and evidence.

Although there were evidentiary concerns—such as the absence of the actual text of the email notifications—the Court did not need to resolve those issues in detail because authorization and access to the account were established. The Court also observed that reliance on electronic communication can create practical risks where notifications go unnoticed, but emphasized that such policy considerations are for Parliament.

Ruling and overall outcome
The Court ultimately dismissed the application. While it found that it had jurisdiction, it concluded that the application for an extension of time could not succeed because the request was not made within the one-year period after the expiry of the 90-day objection period, as required by section 303(7)(a).

The statutory deadline is mandatory and provides no discretion to grant relief once it has expired. As a result, the applicant cannot pursue the underlying GST/HST assessments on their merits. The application was dismissed without costs.