The Court of Appeal decision in Aubrey Dan Family Trust v. Ontario (Finance) considers whether a income tax limitation waiver form T2029 is a prescribed form under the federal Income Tax Act:
[3] On its motion, the appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed. The appellant argued that limitation waiver form T2029, which it had submitted for the 2007 taxation year, is a prescribed form under the federal Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.) (the “Federal Act”), but the form did not operate to waive the limitation period for reassessing income tax under the Ontario Act. That is because waiver form T2029 had never been “prescribed” for the purposes of the Ontario Act by means of an order of the Provincial Minister: s. 1(1) of the Ontario Act[2]. In any event, advice from government agencies that no order or other document exists that prescribed waiver form T2029 for the purposes of the Ontario Act “called in question” whether it had been prescribed for purposes of the Ontario Act: s. 48(15) of the Ontario Act.
The Court found that it was not a prescribed form:
[6] We do not accept the appellant’s submissions.
[7] The combined operation of s. 10 of the Ontario Act, which adopts certain provisions of the Federal Act, and s. 152(4) of the Federal Act permit reassessment of Ontario tax after a taxpayer’s normal reassessment period in respect of a taxation year where the taxpayer “has filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year”: s. 152(4)(a)(ii) of the Federal Act.
[8] Section 48(15) of the Ontario Act states that “[e]very form purporting to be a form prescribed … by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under … [the Ontario] Act unless called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty.”
[9] As noted by the motion judge, given the existence of a long-standing collection agreement between the Ontario government and the Federal government, by operation of s. 1(1) of the Ontario Act, “Provincial Minister” in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.
[10] Further, waiver form T2029 “bears the insignia of the … [Canada Revenue Agency (“CRA”)] and the Government of Canada and … is regularly used by the CRA.” In the motion judge’s words, “[i]n this way, it implies or purports to be a prescribed form.” Moreover, “[e]xplicit wording on the form that it purports to be a form prescribed under the Ontario Act is not required for subsection 48(15) to apply.”
[11] We agree with the motion judge that Murphy does not assist the appellant. In that case, it was held that a deeming provision in the Federal Act (s. 244(13)) could not assist where a document was signed and issued by a CRA official who lacked the statutory authority to do so. Here, no delegated statutory authority is required to authorize any signatures on waiver form T2029.
[12] As the motion judge observed, this case is more akin to the decisions of the British Columbia Court of Appeal in R. v. Point,119 C.C.C. 117; R. v. Watson, 2006 BCCA 233 (CanLII), [2006] 4 C.T.C. 61; and R. v. Smith, 2007 BCCA 499 (CanLII), [2007] 1 C.T.C. 147, in which that court relied on deeming provisions in the Federal Act (s. 244(16) or a predecessor thereof), which is akin to s. 48(15) of the Ontario Act, to find that forms were prescribed forms under the Federal Act.
[13] The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While “all statutes … must be interpreted in a textual, contextual and purposive way”, the context of an income tax statute may lead to “an emphasis on textual interpretation”: Canada Trustco Mortgage Co. v. R., 2005 SCC 54 (CanLII), [2005] 2 S.C.R. 601, at para. 11. Section 48(15) deems waiver form T2029 to be a prescribed form.
[14] We agree with the motion judge that s. 48(15) avoids the necessity of formal proof of an order of the Minister of National Revenue and that “[t]he prescription imposed by the Minister [of National Revenue] is sufficiently evidenced by the aforesaid indicia on the form.” Further, as we have said, the appellant does not dispute that waiver form T2029 is a prescribed form for the purposes of the Federal Act.
[15] Accordingly, under the first part of s. 48(15) of the Ontario Act, waiver form T2029 clearly purports “to be a form prescribed or authorized by the [Minister of National Revenue]”. Further, on a proper reading of the second part of s. 48(15), waiver form T2029 “shall be deemed to be a form prescribed by order of the [Minister of National Revenue] under this Act”. The meaning is clear. This form purporting to be “prescribed or authorized by the [Minister of National Revenue] shall be deemed to be … prescribed by order of the [Minister of National Revenue]” under the Ontario Act.
Frankly, I’ve included this decision because I think it might be a limitations issue, albeit an esoteric one, but I’m not sure.