Practice National Taxation

Canadian taxpayers must respond to CRA about assessments, reassessments, confirmations by the deadline

In Oliveira v. The King, the Tax Court was primarily concerned with the timeliness of the application, explains Canadian tax accountant and lawyer David J Rotfleisch

Author: David J. Rotfleisch
David Rotfleisch, CPA, JD
David J Rotfleisch, CPA, JD is the founding tax lawyer of and Rotfleisch & Samulovitch P.C., a Toronto-based boutique tax law corporate law firm.

OLIVERIA V. THE KING demonstrates the need for taxpayers to diligently follow the deadlines stipulated on the notices received from the Canada Revenue Agency. Deadlines stipulated on notices of assessments, reassessments, or confirmations are based upon Canadian tax legislation, i.e., the Income Tax Act and the Excise Tax Act. Failure to follow the deadlines articulated in the legislation can prevent you from appealing to the Tax Court of Canada thereby losing your tax case. Oliveira also illustrates that the Tax Court will enforce these deadlines regardless of the merits of your case.

Timelines are key to a taxpayer's successful claim.

The taxpayer, Mr. Bruno Oliveira, a high school teacher from Kelowna, British Columbia was assessed by the CRA under director's liability for his numbered company. The CRA assessed the taxpayer under both the Income Tax Act & the Excise Tax Act. His request for an extension of time to initiate an appeal to the Tax Court was rejected on the grounds that the issue was statute-barred.

The CRA assessed the taxpayer for director's liability under s.227.1 of the Income Tax Act and s.323 of the Excise Tax Act on September 30, 2019. The taxpayer sent a notice of objection to the CRA on December 19, 2019. The CRA rejected the arguments put forward by the taxpayer and sent a notice of confirmation of the assessments under both the Income Tax Act and the Excise Tax Act to the taxpayer on May 10, 2021. The May 10th notices clearly stipulated that the taxpayer had 90 days to initiate an appeal to the Tax Court of Canada. This 90-day deadline expired on August 8, 2021.

On August 9, 2021, the taxpayer attempted to fax a letter to the CRA's Western Canada Appeals Intake. He only intended to send this fax to the CRA tax office and not to the Tax Court of Canada — where was required to submit his appeal.

Between May 10, 2021, and August 8, 2021, the taxpayer had already received and read the CRA's letter. According to the taxpayer, he read the letter in his bathroom shortly before it was flooded, and the letter was lost. Therefore, the taxpayer received replacement copies of the May 10th letter on August 26, 2021, which stipulated the same 90-day deadline to appeal to the tax court.

On September 13, 2022, the taxpayer applied for an extension of time request with the Tax Court of Canada under s.167(1) of the Income Tax Act and s.305(1) of the Excise Tax Act. This was after the 1-year grace period allowed to taxpayers to file an extension of time request after they have received a letter of confirmation from the CRA. Therefore, the time to request an extension elapsed on August 8, 2022. Even if the Canadian tax litigation lawyer of the taxpayer argued that the August 26, 2021, date should be considered as commencement of his 1-year grace period to file, the filing in September 2022, extinguished any chances of meeting that deadline.

A Delay in your Extension of Time Application does not necessarily invalidate it

The court in Oliveira held that although filing an extension of time application is not sufficient for the application to be granted by the court, it is necessary to file one in order to receive any kind of tax relief in Canada. The tax court looks at a number of factors when deciding if it wishes to grant an extension:

  • Timeliness of Application — The taxpayer must file an application for an extension of time within 1-year after the 90-day deadline to institute the appeal. This 1-year grace period is provided by s.167(5)(a) of the Income Tax Act and s.305(5)(a) of the Excise Tax Act.
  • Equitable - it must be just an equitable to grant the extension.
  • Reasonableness - the application must have been made as soon as circumstances permitted, and if not, a bona fide intent to file the application should have been present.

In Oliveira, the tax court was primarily concerned with the timeliness of the application. By not meeting the stipulated deadlines in the Acts, the taxpayer lost his opportunity to appeal his case, regardless of its merits.

The lawyer for the taxpayer unsuccessfully argued that Mr. Oliveira's application should be granted in light of present case-law. He cited Hickerty v. The Queen (2007) TCC 482 and Breathe E-Z Homes Ltd. V. Minister of Revenue (2014) TCC 122. In Hickerty the taxpayer had filed her application but sent it to the wrong address. In E-Z Homes the taxpayer had entrusted his lawyer to file the application and had taken all reasonable steps to ensure compliance with the statute. Neither case applied to the taxpayer in Oliveira; therefore, the tax court distinguished both cases from that of the taxpayer.

Even if the CRA has wrongly assessed a taxpayer for something, failing to file an appeal within the stipulated time can prevent a taxpayer from seeking relief. For the court to consider the merits of the case, the taxpayer must first cross the hurdle of convincing the judge that their untimeliness entailed a bona fide intent to file the application; and in some cases, was caused by circumstances beyond their control. However, there have been cases before the tax court where an extension of time application was accepted, even though it was filed late.

David J Rotfleisch, CPA, JD is the founding tax lawyer of and Rotfleisch & Samulovitch P.C., a Toronto-based boutique tax law corporate law firm and is a Certified Specialist in Taxation Law who has completed the CICA in-depth tax planning course. He appears regularly in print, radio and TV and blogs extensively.  

With over 30 years of experience as both a lawyer and chartered professional accountant, he has helped start-up businesses, cryptocurrency traders, resident and non-resident business owners and corporations with their tax planning, with will and estate planning, voluntary disclosures and tax dispute resolution including tax audit representation and tax litigation. Visit and email David at

Read the original article in full on Tax Law Canada. Author photo courtesy Rotfleisch & Samulovitch P.C. Title image: iStock (modified). 

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