COVID-19 Extensions to Limitations Periods for Tax Disputes
The Time Limits and Other Periods Act (COVD-19) (TLOPA) came into effect on the 27th July 2020. Respecting the timelines under the Income Tax Act (ITA) and the Tax Court of Canada Act (TCCA), TOLPA came into effect with the royal assent of Bill C-20. The legislation has remained the same since the introduction of Bill C-17 on 10th June 2020.
There are several consequences of the legislation that taxpayers should be aware of:
● under TLOPA, there is a maximum six-month suspension of specific time limits for court proceedings and;
● ministers are temporarily able to provide six-month maximum suspensions or extensions for time limits and other periods related to specified Acts and regulations
● the powers granted by TLOPA are intended to be transparently exercised with oversight from Parliament
This focus of this article is on the tax implications of TOLPA, including assessments, objections and appeals.
An overview of TLOPA
TLOPA provides flexible suspensions or extensions to time limits that may be affected by COVID-19. The pandemic has meant that certain time limits may be extremely difficult or even impossible to meet. The extensions or suspensions are intended to be fair provisions for this exceptional time and will reduce the negative impact of expired time periods and missed payment deadlines.
How do the time limits relate to court proceedings?
The TOLPA Suspension Period for court proceedings is from the 13th March 2020 to 13th September 2020. It applies to the commencement of a court proceeding and any steps within the proceeding. The suspension is also applicable to applications for leave to commence a proceeding, or leave within a proceeding. Individual Courts may vary their suspension time limits, but in all cases, the initial commencement date must remain in place and the maximum permitted suspension is six months. It is up to the discretion of the Court to issue orders regarding the effect of missed suspended time limits, which may include orders to cancel or alter the effects of the missed suspension.
Under TLOPA, the following suspensions continue until 14th September 2020 at the minimum:
● Appeals to the Tax Court of Canada. Under TOLPA, there is a granted extension to the 90 days that taxpayers can appeal against the CRA Appeals Division to the Tax Court of Canada under subsection 169(1) of the ITA.
● ‘Time To Appeal’ Extension Applications to the Tax Court of Canada. TOLPA provides an extension to the 1-year period for taxpayers to apply to the Court to extend appeal deadlines (where taxpayers have missed the 90-day limit on appealing against the CRA Appeals Division).
● Replies to a Notice of Appeal. TLOPA extends the 60-day period that the Minister of National Revenue has to reply to a notice of appeal from a taxpayer
● Appeals to the Federal Court of Canada. TLOPA extends the 30 days for appealing decisions from the Tax Court of Canada to the Federal Court of Appeal.
● ‘Time To Object’ Extension Applications to the Tax Court of Canada. Where a taxpayer has missed the deadline to file an objection, there is a one year period from the expired deadline to apply for an extension of time to object. If the Minister rejects the application, then subsection 166.2(1) of the ITA gives the taxpayer 90 days from the Minister's rejection to apply to the Tax Court of Canada for an extension. TLOPA grants extensions to this 90-day limit.
Limitation Periods for Reassessment and Other Time Limits Suspended and Extended by TOLPA
Under TOLPA, ministers can make orders to suspend or extend certain other time limits and periods, including reassessments and objections. Such orders cannot extend beyond 31st December 2020 and are not valid for any periods that end on or after this date. Under the sunset clause of TLOPA, ministers cannot exercise these powers after 30th September 2020.
In particular, the limitation period extensions in TLOPA are as follows:
1. There cannot be ministerial order extensions to limitation periods ending before 13th March 2020.
2. There is a maximum six-month extension (to 13th September 2020) granted by ministerial order for limitation periods ending on 13th March 2020. For limitation periods ending between 13th March 2020 and 1st July 2020, ministerial orders can extend by a maximum of six months.
3. For limitation periods ending between 1st July 2020 and 31st December 2020, ministerial orders can extend up to and including the deadline of 31st December 2020.
Ministerial orders can bee retroactive, backdating to 13th March 2020. Such orders may also specify provisions for failure to meet deadlines, or the expiry of periods before the date of the order, which can include cancellation or alteration of these effects. Usually, such ministerial orders do not require consent from any individual, court or other body to suspend or extend timelines, but they may include extra stipulations for flexible suspension or extension such as a requirement for consent.
The following specific tax time-period limits can be extended by ministers under TLOPA:
● deadlines for filing scientific research and experimental development (SR&ED) deductions;
● Deadlines for filing investment tax credits;
● normal reassessment period; and
● applications to the Minister or Tax Court of Canada for an extension of time to object.
At the time of publishing, there have not yet been ministerial orders to extend these time limits.
What is the due process for extending time limits?
To remain transparent and gain oversight from parliament, any misters creating a suspension or extension order must follow the due process detailed by TOLPA:
● orders must be made before 1st October 2020
● the order, and its accompanying justification, must be published on a Government of Canada website and in the Canada Gazette; and
● the order must be tabled in Parliament within three days after the time it is made, or at the earliest opportunity
● the order must be referred to a committee of each House of Parliament