Tax Court of Canada Rules (Informal Procedure) (SOR/90-688b)

Whereas, pursuant to subsection 22(3)Footnote ^* of the Tax Court of Canada Act, the rules committee of the Tax Court of Canada published a notice of the proposed revocation of the Tax Review Board Rules, C.R.C., c. 1513, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act)Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991, and a copy of the proposed Tax Court of Canada Rules (General Procedure) and the proposed Tax Court of Canada Rules (Informal Procedure), substantially in the form annexed hereto, in the Canada Gazette Part I on April 21, 1990, and invited any interested person to make representations to the rules committee with respect thereto;

• Return to footnote ^*R.S., c. 51 (4th Supp.), s. 7

• Return to footnote ^**SOR/85-119, 1985 Canada Gazette Part II, p. 1021

Therefore, the rules committee of the Tax Court of Canada, pursuant to section 20Footnote ^*** of the Tax Court of Canada Act and subject to the approval of the Governor in Council, hereby

• Return to footnote ^***R.S., c. 51 (4th Supp.), s. 6

• (a) revokes, effective January 1, 1991, the Tax Review Board Rules, C.R.C., c. 1513, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act), approved by Order in Council P.C. 1985-183 on January 24, 1985Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991; and

• (b) makes, effective January 1, 1991, the annexed Tax Court of Canada Rules (General Procedure) and Tax Court of Canada Rules (Informal Procedure), in substitution therefor.

Dated this 7th day of September 1990

J.-C. Couture, Chief Judge	D. H. Christie, Associate Chief Judge
M. J. Bonner	A. Garon
Helen C. Turner	Maurice Regnier, Q.C.

His Excellency the Governor General in Council, on the recommendation of the Minister of Justice, pursuant to subsection 20(1)Footnote ^* of the Tax Court of Canada Act, is pleased hereby to approve

• (a) the revocation, by the rules committee of the Tax Court of Canada, effective January 1, 1991, of the Tax Review Board Rules, C.R.C., c. l5l3, and the Tax Court of Canada Rules of Practice and Procedure for the Award of Costs (Income Tax Act), approved by Order in Council P.C. 1985-183 on January 24, 1985Footnote ^**, except in respect of any appeals or proceedings instituted before January 1, 1991; and

• (b) the making, by the rules committee of the Tax Court of Canada, effective January 1, 1991, of the Tax Court of Canada Rules (General Procedure) and the Tax Court of Canada Rules (Informal Procedure), in substitution therefor.

• Return to footnote ^*R.S., c. 51 (4th Supp.), s. 6

• Return to footnote ^**SOR/85-119, 1985 Canada Gazette Part II, p. 1021

Short Title

1 These rules may be cited as the Tax Court of Canada Rules (Informal Procedure).

Interpretation

2 In these rules,

Act

Act means the Tax Court of Canada Act; (Loi)

assessment

assessment includes a determination, a redetermination, a reassessment, and an additional assessment; (cotisation)

counsel

counsel means every person who may practise as a barrister, advocate, attorney or solicitor in any of the provinces; (avocat)

electronic filing

electronic filing means the act of filing, by electronic means, through the Court’s website (www.tcc-cci.gc.ca) or any other website referred to in a direction issued by the Court, any document listed on those sites; (dépôt électronique)

Minister

Minister means the Minister of National Revenue; (ministre)

Registrar

Registrar means the person appointed as Registrar of the Court by the Chief Administrator of the Courts Administration Service in consultation with the Chief Justice; (greffier)

Registry

Registry means the Registry established by the Chief Administrator of the Courts Administration Service at the principal office of the Court at 200 Kent Street, 2nd Floor, Ottawa, Ontario K1A 0M1 (telephone: (613) 992-0901 or 1-800-927-5499; fax: (613) 957-9034; website: www.tcc-cci.gc.ca) or at any other local office of the Court specified in notices published by the Court. (greffe)

Application

3 These rules apply to all appeals in the Tax Court of Canada under the Income Tax Act that are governed by the informal procedure and, with such modifications as the circumstances require, in respect of appeals arising under the Petroleum and Gas Revenue Tax Act.

Associate Judges

• 3.1 (1) An associate judge of the Court has all the powers of a judge of the Court under these Rules.

• (2) Any associate judge may sit and act at any time and at any place in Canada for the transaction of the business of the Court, and, where the associate judge so sits or acts, that associate judge constitutes the Court.

Filing a Notice of Appeal

4 An appeal referred to in section 3 shall be instituted by filing a notice of appeal, which may be in the form set out in Schedule 4, using one of the following methods:

• (a) depositing the notice with the Registry;

• (b) sending it by mail to the Registry; or

• (c) sending it by fax or by electronic filing to the Registry.

Filing of other Documents

4.1 Except as otherwise provided in these rules and unless otherwise directed by the Court, a document other than a notice of appeal may be filed using one of the following methods:

• (a) depositing it with the Registry;

• (b) sending it by mail to the Registry; or

• (c) sending it by fax or by electronic filing to the Registry.

Filing Date

4.2 Except as otherwise provided in these rules and unless otherwise directed by the Court, the date of filing of a document is deemed to be

• (a) in the case of a document filed with the Registry or sent by mail or by fax, the date shown by the date received stamp placed on the document by the Registry at the time it is received; or

• (b) in the case of a document filed by electronic filing, the date shown on the acknowledgment of receipt issued by the Court.

Electronic Filing

• 4.3 (1) Except as otherwise provided in these rules and unless otherwise directed by the Court, when a document is filed by electronic filing, the copy of the document that is printed by the Registry and placed in the Court file is deemed to be the original version of the document.

• (2) A party who files a document by electronic filing shall, if required by these rules or at the request of a party or the Court, provide a paper copy of the document and file it with the Registry.

• (3) If the Registry has no record of the receipt of a document, it is deemed not to have been filed, unless the Court directs otherwise.

Appellant’s Address for Service of Documents

• 5 (1) The notice of appeal shall also include the appellant’s address for service of documents.

• (2) The appellant’s address for service may be the address of the appellant, the appellant’s counsel or agent.

• (3) A written notice of any change in the appellant’s address for service shall forthwith be given at the Registry by the appellant, the appellant’s counsel or agent, which address shall thereafter be that party’s address for service.

• (4) Until notice of a change of the appellant’s address for service is received at the Registry any service required to be made on the appellant of any documents pertaining to his appeal shall be made by mail to the address contained in the notice of appeal and shall constitute good and sufficient service on the appellant.

Reply to Notice of Appeal

• 6 (1) Every reply to a notice of appeal shall contain a statement of

  • (a) the facts that are admitted,

  • (b) the facts that are denied,

  • (c) the facts of which the respondent has no knowledge and puts in issue,

  • (d) the findings or assumptions of fact made by the Minister when making the assessment,

  • (e) any other material facts,

  • (f) the issues to be decided,

  • (g) the statutory provisions relied on,

  • (h) the reasons the respondent intends to rely on, and

  • (i) the relief sought.

• (2) Within five days after a reply is filed, the Minister of National Revenue shall serve a copy of it by registered mail addressed to the appellant’s address for service of documents.

Expert Witnesses

• 7 (1) A party who intends to call an expert witness at the hearing of an appeal shall, not less than 10 days before the commencement of the hearing, file at the Registry and serve on the other parties a report, signed by the expert, setting out the expert’s name, address and qualifications and the substance of the expert’s testimony.

• (2) An expert witness may not testify, except with leave of the presiding judge, if subsection (1) has not been satisfied.

Discontinuance

• 8 (1) A party who instituted an appeal in the Court may, at any time, discontinue that appeal by written notice.

• (2) Such discontinuance may be in the form set out in Schedule 8 to these rules.

Pronouncing and Entering of Judgments

• 9 (1) The Court shall dispose of an appeal or an interlocutory or other application that determines in whole or in part any substantive right in dispute between or among the parties by rendering a judgment and shall dispose of any other interlocutory or other application by issuing an order.

• (2) A judgment shall be dated on the day it is signed and that day is the date of the pronouncement of the judgment.

• (3) A judgment and the reasons relating to it, if any, shall be filed with the Registry without delay.

Costs

• 10 (1) The Court may determine the amount of the costs of all parties involved in any proceeding, the allocation of those costs and the persons required to pay them.

• (2) The Court may award costs to the respondent, in an amount not exceeding the amounts listed in section 11, only if the actions of the appellant unduly delayed the prompt and effective resolution of the appeal.

• (3) The Court may direct the payment of costs in a fixed sum, in lieu of any taxed costs.

11 On the taxation of party and party costs the following fees may be allowed for the services of counsel

• (a) for the preparation of a notice of appeal or for advice relating to the appeal, $185;

• (b) for preparing for a hearing, $250;

• (c) for the conduct of a hearing, $375 for each half day or part of a half day; and

• (d) for the taxation of costs, $60.

11.1 Unless otherwise directed by the Court, where an appellant is represented or assisted by an advisor other than counsel, disbursements in respect of services referred to in section 11 may be allowed on the taxation of party and party costs in an amount not to exceed one half of the amounts listed in section 11.

• 11.2 (1) Such other disbursements may be allowed as were essential for the conduct of the appeal if it is established that the disbursements were made or that the party is liable for them.

• (2) There may be allowed all services, sales, use or consumption taxes and other like taxes paid or payable on any counsel fees and disbursements allowed if it is established that such taxes have been paid or are payable and are not otherwise reimbursed or reimbursable in any manner whatever, including, without restriction, by means of claims for input tax credits in respect of such taxes.

• 12 (1) A witness, other than a witness who appears to give evidence as an expert, is entitled to be paid by the party who arranged for his or her attendance $75 per day, plus reasonable and proper transportation and living expenses.

• (1.1) An amount is not payable under subsection (1) in respect of an appellant unless the appellant is called upon to testify by counsel for the respondent.

• (2) There may be paid to a witness who appears to give evidence as an expert a reasonable payment, not to exceed $300 per day unless the Court otherwise directs, for the services performed by the witness in preparing himself to give evidence and giving evidence.

• (3) and (4) [Repealed, SOR/2004-101, s. 8]

• 13 (1) Subject to subsection 10(3), costs shall be taxed by the Registrar or any other person that may be designated by the Chief Justice as a taxing officer.

• (2) An appellant whose costs are to be taxed shall file with the Registrar a bill of costs, which may be in the form set out in Schedule 13.

• (3) The Registrar shall forthwith send a true copy of the bill of costs to counsel for the respondent.

• (4) Immediately following the taxation the Registrar shall send to each of the parties a certificate of taxation.

• 14 (1) Any party may appeal to a judge of the Court from the taxation, such appeal to be exercised by notice in writing sent to the Registrar within 20 days of the date of mailing of the certificate of taxation.

• (2) The time referred to in subsection (1) may be extended by a Judge of the Court.

Costs in Vexatious Proceedings

14.1 Where a judge has made an order under section 19.1 of the Act, costs may be awarded against the person in respect of whom the order has been made.

Removal of an Appeal from the Informal Procedure to the General Procedure or from the General Procedure to the Informal Procedure

15 An application by the Deputy Attorney General of Canada to remove the appeal from the informal procedure to the general procedure shall be by motion, and the Court may give such directions as are necessary for the subsequent conduct of the appeal. There shall be no additional filing fee for proceeding in the general procedure unless the Court so directs.

• 16 (1) Where an appeal has been instituted to which the general procedure in the Act is applicable, and if

  • (a) the aggregate of all amounts in issue is equal to or less than $12,000,

  • (b) the amount of the loss that is determined under subsection 152(1.1) of the Income Tax Act and that is in issue is equal to or less than $24,000, or

  • (c) the only subject-matter of the appeal is an amount of interest assessed under the Income Tax Act,

  the appellant may, within 90 days from the date on which the reply is served or within such additional time as the Court may, on motion for special reasons, allow, elect that the informal procedure under the Act shall apply to the appeal.

• (2) The election under subsection (1) may be in the form set out in Schedule 16.

Election to Limit Appeal to Informal Procedure

• 17 (1) Where

  • (a) the aggregate of all amounts in issue exceeds $12,000, or

  • (b) the amount of the loss in issue exceeds $24,000,

  and the appellant wants the informal procedure under the Act to apply to the appeal, the appellant shall elect to limit the appeal to $12,000 or $24,000, as the case may be.

• (2) Where the appellant wishes to make an election under this section in the notice of appeal, the notice of appeal may be in the form set out in Schedule 17(2).

• (3) Where the appellant wishes to make an election under this section after filing the notice of appeal, the election may be in the form set out in Schedule 17(3).

Application for Extension of Time

• 18 (1) A person who has made an application to the Minister to extend the time for the serving of a notice of objection or the making of a request in writing to the Minister for an assessment or determination in respect of an avoidance transaction may apply to the Court to have the application granted after either

  • (a) the Minister has refused the application, or

  • (b) 90 days have elapsed after service of the application and the Minister has not notified the person of the Minister’s decision,

  but no application under this section may be made after the expiration of 90 days after the day on which notification of the Minister’s decision was mailed to the person.

• (2) An application made under subsection (1) may be in the form set out in Schedule 18(1) — OBJECTION or 18(2) — REQUEST, as the case may be.

• (3) An application under subsection (1) shall be made by filing with the Registry, in the manner provided in section 4.1, three copies of the application made to the Minister accompanied by three copies of the notice of objection or the request, as the case may be, and three copies of the Minister’s decision, if any.

• (4) The Court may dispose of an application made under subsection (1) by

  • (a) dismissing it, or

  • (b) granting it,

  and, in granting it, may impose such terms as it deems just or order that the notice of objection or the request be deemed to be a valid objection or request as of the date of the order.

• (5) No application shall be granted under this section to a person unless

  • (a) the application was made within one year after

    • (i) the expiration of the time specified by the Income Tax Act for serving a notice of objection*, or

    • (ii) the lapse of 180 days after the day of mailing of a notice under subsection 245(6) of the Income Tax Act; and

  • (b) the person demonstrates that

    • (i) within the applicable time specified in subparagraph (a)(i) or (ii), the person

      • (A) was unable to act or instruct another to act in the person’s name, or

      • (B) had a bona fide intention to object to the assessment or make the request,

    • (ii) given the reasons set out in the application and the circumstances of the case, it would be just and equitable to grant the application, and

    • (iii) the application to extend time was made to the Minister as soon as circumstances permitted it to be made.

  • * Subsection 165(1) of the Income Tax Act provides:

    • “165. (1) A taxpayer who objects to an assessment under this Part may serve on the Minister a notice of objection, in writing, setting out the reasons for the objection and all relevant facts,

      • (a) where the assessment is in respect of the taxpayer for a taxation year and the taxpayer is an individual (other than a trust) or a testamentary trust, on or before the later of

        • (i) the day that is one year after the taxpayer’s filing-due date for the year, and

        • (ii) the day that is 90 days after the day of mailing of the notice of assessment; and

      • (b) in any other case, on or before the day that is 90 days after the day of mailing of the notice of assessment.”

  Subsection 248(1) provides:

  “filing-due date for a taxation year of a taxpayer means the day on or before which the taxpayer’s return of income under Part I for the year is required to be filed or would be required to be filed if tax under that Part were payable by the taxpayer for the year;”

• (6) The application pursuant to subsection (1) is deemed to have been filed on the date of its receipt by the Registry, even if the application is not accompanied by the documents listed in subsection (3), provided that those documents are filed within 30 days after that date or within any other reasonable time that the Court establishes.