{"id":661,"date":"2018-02-16T18:05:42","date_gmt":"2018-02-16T22:05:42","guid":{"rendered":"http:\/\/limitations.ca\/?p=661"},"modified":"2018-02-16T18:07:35","modified_gmt":"2018-02-16T22:07:35","slug":"661","status":"publish","type":"post","link":"http:\/\/limitations.ca\/?p=661","title":{"rendered":"Ontario: Income tax limitation waivers"},"content":{"rendered":"

The Court of Appeal decision in Aubrey Dan Family Trust v. Ontario (Finance)<\/em><\/a> considers whether a income tax limitation waiver form T2029 is a prescribed form under the federal Income Tax Act<\/em><\/a>:<\/p>\n

[3]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0On 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\u00a0Income Tax Act<\/em>, R.S.C. 1985, \u00a0c. 1 (5th Supp<\/a>.) (the \u201cFederal Act\u201d), 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 \u201cprescribed\u201d for the purposes of the Ontario Act by means of an order of the Provincial Minister: s. 1(1) of the Ontario Act[2]<\/a>. 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 \u201ccalled in question\u201d whether it had been prescribed for purposes of the Ontario Act: s.\u00a048(15) of the Ontario Act.<\/p><\/blockquote>\n

The Court found that it was not a prescribed form:<\/p>\n

[6]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0We do not accept the appellant\u2019s submissions.<\/p>\n

[7]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0The 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\u2019s normal reassessment period in respect of a taxation year where the taxpayer \u201chas filed with the Minister a waiver in prescribed form within the normal reassessment period for the taxpayer in respect of the year\u201d: s. 152(4)(a)(ii) of the Federal Act.<\/p>\n

[8]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0Section 48(15) of the Ontario Act states that \u201c[e]very form purporting to be a form prescribed \u2026 by the Provincial Minister shall be deemed to be a form prescribed by order of the Provincial Minister under \u2026 [the Ontario] Act unless called in question by the Provincial Minister or by some person acting for the Provincial Minister or Her Majesty.\u201d<\/p>\n

[9]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0As 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, \u201cProvincial Minister\u201d in s. 48(15) of the Ontario Act means the Minister of National Revenue for Canada.<\/p>\n

[10]\u00a0\u00a0 \u00a0\u00a0\u00a0Further, waiver form T2029 \u201cbears the insignia of the \u2026 [Canada Revenue Agency (\u201cCRA\u201d)] and the Government of Canada and \u2026 is regularly used by the CRA.\u201d In the motion judge\u2019s words, \u201c[i]n this way, it implies or purports to be a prescribed form.\u201d Moreover, \u201c[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.\u201d<\/p>\n

[11]\u00a0\u00a0 \u00a0\u00a0\u00a0\u00a0We agree with the motion judge that\u00a0Murphy<\/em>\u00a0does 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.<\/p>\n

[12]\u00a0\u00a0 \u00a0\u00a0\u00a0As the motion judge observed, this case is more akin to the decisions of the British Columbia Court of Appeal in\u00a0R. v. Point<\/em>,119 C.C.C. 117<\/span><\/span>;\u00a0R. v. Watson<\/em>,\u00a02006 BCCA 233<\/span>\u00a0(CanLII)<\/a>,\u00a0[2006] 4 C.T.C. 61<\/span><\/span>; and\u00a0R. v. Smith<\/em>,\u00a02007 BCCA 499<\/span>\u00a0(CanLII)<\/a>,\u00a0[2007] 1 C.T.C. 147<\/span><\/span>, in which that court relied on deeming provisions in the Federal Act (s.\u00a0244(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.<\/p>\n

[13]\u00a0\u00a0 \u00a0\u00a0\u00a0The scope of s. 48(15) is to be determined based on a proper interpretation of the Ontario Act. While \u201call statutes \u2026 must be interpreted in a textual, contextual and purposive way\u201d, the context of an income tax statute may lead to \u201can emphasis on textual interpretation\u201d:\u00a0Canada Trustco Mortgage Co. v. R<\/em>.<\/i>,\u00a02005 SCC 54<\/span>\u00a0(CanLII)<\/a>,\u00a0[2005] 2 S.C.R. 601<\/span>, at para. 11<\/span>. Section 48(15) deems waiver form T2029 to be a prescribed form.<\/p>\n

[14]\u00a0\u00a0 \u00a0\u00a0\u00a0We 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 \u201c[t]he prescription imposed by the Minister [of National Revenue] is sufficiently evidenced by the aforesaid indicia on the form.\u201d 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.<\/p>\n

[15]\u00a0\u00a0 \u00a0\u00a0\u00a0Accordingly, under the first part of s. 48(15) of the Ontario Act, waiver form T2029 clearly purports \u201cto be a form prescribed or authorized by the [Minister of National Revenue]\u201d. Further, on a proper reading of the second part of s. 48(15), waiver form T2029 \u201cshall be deemed to be a form prescribed by order of the [Minister of National Revenue] under this Act\u201d. The meaning is clear. This form purporting to be \u201cprescribed or authorized by the [Minister of National Revenue] shall be deemed to be \u2026 prescribed by order of the [Minister of National Revenue]\u201d under the Ontario Act.<\/p>\n<\/blockquote>\n

Frankly, I’ve included this\u00a0decision because I think it might be a limitations issue, albeit an esoteric one, but I’m not sure.<\/p>\n","protected":false},"excerpt":{"rendered":"

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]\u00a0\u00a0 \u00a0\u00a0 \u00a0\u00a0\u00a0On its motion, the appellant asserted that the reassessment occurred after the limitation period for reassessing Ontario income tax had passed. … Continue reading Ontario: Income tax limitation waivers<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[4],"tags":[397,396,398,43,395],"class_list":["post-661","post","type-post","status-publish","format-standard","hentry","category-ontario","tag-form-t2029","tag-income-tax-limitation-waiver","tag-maybe-not-actually-a-limitations-issue","tag-ontario-court-of-appeal","tag-tax"],"_links":{"self":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/661","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=661"}],"version-history":[{"count":2,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/661\/revisions"}],"predecessor-version":[{"id":663,"href":"http:\/\/limitations.ca\/index.php?rest_route=\/wp\/v2\/posts\/661\/revisions\/663"}],"wp:attachment":[{"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=661"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=661"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/limitations.ca\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=661"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}