In Sentinel Hill Productions IV Corporation v. The
Queen (2013 TCC 267), Justice Judith Woods of the Tax Court of
Canada said no. In so doing, she shed light on the requirements for
making an application for a determination of a question of law
under Rule 58 of the Tax Court of Canada Rules (General
Rule 58(1) states:
58. (1) A party may apply to the
(a) for the determination,
before hearing, of a question of law, a question of fact or a
question of mixed law and fact raised by a pleading in a proceeding
where the determination of the question may dispose of all or part
of the proceeding, substantially shorten the hearing or result in a
substantial saving of costs, or
(b) to strike out a
pleading because it discloses no reasonable grounds for appeal or
for opposing the appeal,
and the Court may grant judgment
The question proposed by the appellants involved the issue of
whether notices of determination under subsection 152(1.4) of the
Income Tax Act issued in respect of certain partnerships
for 2000 and 2001 should be vacated and the appeals allowed on the
basis that the Minister subsequently concluded that the
partnerships did not exist for these years. Importantly, the Court
found that "the focus of the Proposed Question is on whether
the Minister of National Revenue is now statute barred from issuing
reassessments to partners by virtue of subsection 152(1.8) of the
Income Tax Act." (para. 7)
The Court decided not to allow the Rule 58 application to
proceed as it did not meet the two conditions in Rule 58(1)(a).
First, the statute-barred issue had not been raised as an issue
"by a pleading". Second, the proposed question would not
have disposed of or shortened the proceeding or saved costs.
Although the validity and correctness of an assessment can be
determined by the Tax Court of Canada, the proposed question would
have challenged the validity of assessments not yet issued and,
therefore, the determination of the question of law (whether the
Minister is statute-barred from issuing future assessments) would
not have disposed of or shortened the proceeding or saved
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