On January 8, 2019 the Federal Court of Appeal dismissed an Appeal made by a taxpayer who had had their Tax Court of Canada case dismissed. The case was dismissed by the Tax Court on a summary motion on the basis that the taxpayer had signed a waiver of her right of appeal in exchange for certain interest relief considerations from the Canada Revenue Agency. The case is important as it has solidified the law surrounding what constitutes a valid waiver and provides taxpayers with a solid framework for determining if they should accept a tax case settlement offer in exchange for a waiver from the CRA.
The Tax Court Decision – Abdalla v The Queen, 2017 TCC 222
The story begins with a donation shelter arrangement that the taxpayer had involved themselves in. The GLGI structure, which has been dealt with in other articles on our site, essentially attempted to claim donation receipts for taxpayers in excess of their actual cash donations based on the value of the assets donated.
In the case of Abdalla, at the notice of objections stage, the taxpayer received an offer from the CRA which stated that in exchange for signing a waiver of their right to appeal to the Tax Court, the CRA would apply the same relief provided by the Tax Court on a related case that was then under appeal. The taxpayer signed this agreement to be bound and waived the right to appeal.
Once the original case was decided, the taxpayer sought additional legal advice as they were not happy with the outcome which effectively denied them any relief. They were advised by legal counsel to file an Appeal despite the fact that a waiver had previously been signed.
At the Tax Court, the Department of Justice Canadian tax lawyer representing CRA filed a summary motion to dismiss the Appeal on the basis that a valid waiver had been signed. The appellant's Canadian tax lawyer argued that there was undue pressure administered to the appellant to force them to sign the waiver and that the wavier itself did not constitute a legally binding document.
In rendering its decision, the Tax Court of Canada identified four factors that should be weighed in order to determine if a waiver was valid for the purposes of precluding a taxpayer from filing an appeal.
The four factors identified were:
- The document is titled or otherwise clearly indicates that it is an Agreement to be Bound and Waiver of Objection and Appeal Rights;
- The document clearly stated that the taxpayer waives any right of objection or appeal;
- The document states clearly that the taxpayer understands that they will be precluded from filing an objection or appeal; and
- The document clearly outlines the language of subsections 165(1.2) and 169(2.2) of the Income Tax Act, the provisions that provide for the waiver to be effective.
On this basis the taxpayer's appeal was quashed.
The Federal Court of Appeal - Abdalla v The Queen, 2019 FCA 5
Upon further appeal by the taxpayer, the unanimous Federal Court of Appeal determined that the Tax Court had made no error of law nor of mixed fact and law when it determined that the taxpayer had validly waived his right to file an appeal. Although the taxpayer had argued undue influence, no evidence of this was provided to the Court besides the affidavit of the taxpayer, and thus the trial court judge acted reasonably when he dismissed this line of argument.