Notice Of Assessment Not Received: Recent Developments

The importance of respecting the various time limits imposed on taxpayers in exercising their right to contest cannot be overstated.

At the provincial level, a taxpayer may object to an assessment by filing a written notice of objection within 90 days of the date a notice of assessment is sent. A similar rule applies at the federal level, whether in terms of income tax or GST1. After this period has expired, a request for an extension of the time limit for filing an objection must be submitted to the tax authorities. Such a request could be refused depending on the circumstances, hence the importance of objecting within the 90-day period.

Section 87 of the Tax Administration Act2 ("TAA") provides that the date of sending a notice of assessment is presumed to be the date indicated on the notice. At the federal level, the rule is essentially the same for GST3 and income tax, the date of sending a notice of assessment is presumed to be the date on which the notice was mailed (or sent electronically)4.

If a taxpayer has not received his notice of assessment from the provincial government, he may apply to the Court of Québec for a judge to order the Minister to provide him with a certified copy of the notice of assessment. In such cases, the court must be satisfied by preponderant evidence that the notice of assessment has not been received and that the taxpayer is suffering otherwise irreparable prejudice. The advantage of such a request is that the taxpayer will then be able to file his objection. Indeed, the 90-day period will begin to run on the date of notification of the notice of assessment following the court order.

At the federal level, to the extent that the Minister can prove that the notice of assessment has been sent (for GST) or mailed (for income taxes), it will be presumed that its sending or mailing, as the case may be, took place on the date set out on the notice5. To overcome this presumption, a taxpayer will not necessarily be able to rely on the fact that he or she has not received a notice of assessment or benefit from a similar remedy at the provincial level in such circumstances. Indeed, the Minister has an irrebuttable presumption that any first-class mail (or equivalent) is deemed to have been received by a taxpayer on the date of mailing6.

Recent case law: the Trottier and Kirschke cases

The Trottier c. Agence du revenu du Québec7 case provides some relevant information in provincial law with respect to the non-receipt...