Canada: s. 220(2.1) & Notice Of Objection - ConocoPhillips Canada Resources Corp v MNR Case Comment

Last Updated: March 16 2016
Article by David Rotfleisch

ConocoPhillips Canada Resources Corp v MNR – s. 220(2.1) & Notice of Objection – Toronto Tax Lawyer Case Comment

Summary - ConocoPhillips Canada Resources Corp v MNR

In Conocophillips Canada Resources Corp. v MNR 2016 FC 98 the Federal Court of Canada found that the CRA does have the jurisdiction to waive the service requirements for a notice of objection under subsection 220(2.1) of the Canadian Income Tax Act ("Tax Act"). However, whether the waiver should be granted is to be determined by the CRA. If the CRA unreasonably refuses to exercise their discretion, a taxpayer can challenge the refusal in the Federal Court. For more information on the exercising of discretion by the CRA, please visit

We have not yet heard the last word on this case since the CRA filed a notice of appeal to the Federal Court of Appeal against this decision on February 26, 2016.

Timely Notice of Objection and Extension of Time for Service of Notice of Objection

Under subsection 165(1) of the Tax Act, a taxpayer who objects to a CRA Income Tax Assessment may serve a notice of objection on the CRA. Paragraph 165(1)(a) states that the objection must be served within 90 days after the notice of assessment is sent to the Canadian taxpayer. If an objection is not sent during this 90 day period, subsection 166.1(1) of the Tax Act allows the taxpayer to apply to the CRA to extend the time to serve the notice of objection. However, the application will not be granted if the taxpayer does not comply with subsection 166.1(7) of the Tax Act. Subsection 166.1(7) states that an application for an extension of time must be made within one year after the expiration of the 90 day objection period. If the taxpayer attempts to serve the notice of objection outside of this time period it will not be accepted by the CRA. In other words, there is normally a 15 month window for a Toronto tax attorney to object to a CRA tax assessment.

Section 220 of the Tax Act

The "Administration and Enforcement" part of the Tax Act begins in section 220. Under the heading "Minister's Duty" is subsection 220(2.1) which covers "waiver of filing of documents." In this subsection, if there is a requirement under the Tax Act to file a prescribed form, document, receipt, or prescribed information, the CRA has the power to waive the requirement. However, even if a waiver of a requirement is granted, the CRA can still request the documents or information at a later date.

Facts ConocoPhillips Canada Resources Corp v The Minister of National Revenue

ConocoPhillips was part of a collective group of litigants that challenged the correctness of the Syncrude Remission Order for the 2000 tax year. All members had participated in the Syncrude Oil Sands project. The CRA requested that ConocoPhillips provide a waiver for adjustments that would occur if the litigation was decided in favour of the collective litigants. ConocoPhillips refused to provide this document. As a result, the CRA reassessed ConocoPhillips' taxable income for the 2000 year to include potential, additional remission amounts. ConocoPhillips served a timely notice of objection to this initial reassessment in 2006.

A second (unrelated) reassessment was issued on November 7, 2008. However, ConocoPhillips was not aware that this notice had been issued until April 14, 2010, which was after the period to object and apply for an extension had expired. ConocoPhillips did not receive a copy of this reassessment until May 2010. ConocoPhillips attempted to serve a second notice of objection. The objection was rejected by the CRA on the grounds that it had not been served in a timely manner and that the period to request an extension to serve a notice of objection had expired. ConocoPhillips alleged that it did not file a timely notice of objection because it received a copy of the reassessment after the time limit and extension periods for a notice of objection had passed.

ConocoPhillips relied on subsection 220(2.1) of the Tax Act to request that the CRA waive the obligation to serve a notice of objection. The CRA decided that the scope of authority under subsection 220(2.1) did not extend to objections to assessments and denied the request. ConocoPhillips made a successful application to the Federal Court to review the CRA's refusal to waive the obligation to serve a notice of objection.

Toronto Tax Lawyer Legal Analysis ConocoPhillips Canada Resources Corp v The Minister of National Revenue

Our experienced Toronto tax litigation attorneys have analyzed this case. At issue in this case is whether the CRA erred in determining that it did not have the authority under subsection 220(2.1) of the Tax Act to waive the obligation to serve a notice of objection. However, before the court could decide on the issue, the court had to determine if it had the ability, or jurisdiction, to make a decision on the issue.

There are different types of courts in the Canadian legal system including courts of inherent jurisdiction and statutory courts. Statutory courts have their decision making powers granted to them by way of a statute. Courts of inherent jurisdiction can hear any matter unless a statue or rule grants jurisdiction to another court. If the matter is outside of a court's jurisdiction, it cannot make a legally binding decision on the matter.

In this case the court decided that the matter was properly pursued in the Federal Court for the following reasons. First, the issue was not under the jurisdiction of the Tax Court of Canada ("Tax Court"). The Tax Court of Canada Act sets out the areas of law that only the Tax Court can decide on. Therefore, the issue raised did not need to be heard in the Tax Court. Second, the ability to try the issue was granted to the Federal Court through statute. Judicial review of the matter was available under sections 18 and 18.1 of the Federal Courts Act. Lastly, the ground of review, substantive unacceptability, is known or could be recognized in administrative law. To conclude, the Federal Court said that it had the jurisdiction to decide on this case.

At issue is the CRA's interpretation of a provision within a statute that grants it the authority to apply and administer the Tax Act. The Federal Court held that this is akin to a tribunal interpreting its home statute. Therefore, the precedent in the Supreme Court case of ATA v Alberta 2011 SCC 61 was followed and a deferential reasonableness standard of review was adopted. Based on this standard of review, the CRA's interpretation of the provision would only be accepted if the court found that the interpretation was "reasonable."

The CRA advanced an unsuccessful argument that subsection 220(2.1) would only apply when a provision or regulation of the Income Tax Act "requires a person to file a prescribed form, receipt, or other document." The terms "require" and "file" in subsection 220(2.1) were not consistent with the terms "may" and "serve" used in subsection 165(1). Due to the inconsistencies in language, the CRA argued that the scope of subsection 220(2.1) did not extend to notices of objection under subsection 165(1).

In rejecting the CRA's position , the Federal Court relied on the Tax Court cases of Petratos 2013 TCC 240 and Melanson 2011 TCC 569 to demonstrate that subsection 220(2.1) does apply to notices of objection despite differences in wording between the two provisions. In addition, the Tax Court case of Poulin 2013 TCC 104 held that the CRA's authority under subsection 220(2.1) was a broader, discretionary power which enabled the CRA, in effect, to waive statutory requirements.

The Federal Court held that the CRA's interpretation of subsection 220(2.1) was not reasonable. The provision should not be interpreted strictly. Therefore, the CRA's discretionary power under this subsection extends to objections to assessments. In other words, taxpayers may be able to object to matters beyond the typical 15 month objection window if the CRA chooses to use their power under subsection 220(2.1) to waive the obligation to serve a notice of objection.

Toronto Tax Lawyer Help for Missed Notice of Objection Time Period

Here are two potential scenarios where this waiving of the Objection requirement may occur. First, the Tax Act states that CRA must reassess a taxpayer once served with a notice of objection. However, the CRA possesses the power to reassess a taxpayer even if not served with a notice of objection. Therefore a tax reassessment could still occur even if a notice of objection is not received by the CRA at all. Alternatively the CRA could waive the obligation to serve the notice of objection and then later request the document. Upon receiving the notice of objection, the CRA must then reassess the taxpayer in accordance with the normal Objection rules. If you have missed the 15 month time period to file a Notice of Objection contact one of our top Toronto tax attorneys for tax help.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions