Excise Tax Act (R.S.C., 1985, c. E-15)

Marginal note:Appeal to Tribunal or Court where no decision

• 81.22 (1) Where a person has served a notice of objection under section 81.15 or 81.17, other than a notice in respect of Part I, and the Minister has not sent a notice of his decision to that person within one hundred and eighty days after the notice of objection was served, that person may appeal the assessment or determination to which the notice relates to the Tribunal or the Federal Court.

• Marginal note:Appeal to Court where no decision

  (2) Where a person has served a notice of objection under section 81.15 or 81.17 in respect of Part I and the Minister has not sent a notice of his decision to that person within one hundred and eighty days after the notice of objection was served, that person may appeal the assessment or determination to which the notice relates to the Federal Court.

• Marginal note:Limitation

  (3) No appeal may be instituted pursuant to this section after the Minister has sent a notice of decision to the person who served the notice of objection.

Marginal note:Appeal to Tribunal or Federal Court

• 81.23 (1) Where a person has served a notice of objection under section 81.15 in respect of an assessment and thereafter the Minister, otherwise than pursuant to subsection 81.15(4) or 81.38(1), varies the assessment or makes a reassessment in respect of any matter covered by the assessment and sends to that person a notice of assessment in respect of the varied assessment or reassessment, that person may, without serving a notice of objection to the varied assessment or reassessment,

  • (a) appeal the varied assessment or reassessment to the Tribunal or the Federal Court in accordance with section 81.19 or 81.2, as the case may be, as if the notice of assessment were a notice of decision of the Minister; or

  • (b) if an appeal has been instituted in respect of the assessment, amend the appeal by joining thereto an appeal in respect of the varied assessment or reassessment in such manner and on such terms, if any, as the Tribunal or the court hearing the appeal, as the case may be, deems appropriate.

• Marginal note:Idem

  (2) Where a person has appealed an assessment under section 81.22 and thereafter the Minister, pursuant to subsection 81.15(4), varies the assessment or makes a reassessment in respect of any matter covered by the assessment and sends to that person a notice of decision in respect of the varied assessment or reassessment, that person may, without serving a notice of objection to the varied assessment or reassessment, amend the appeal by joining thereto an appeal in respect of the varied assessment or reassessment in such manner and on such terms, if any, as the Tribunal or the Federal Court, as the case may be, deems appropriate.

Marginal note:Appeal to Court from decision of Tribunal

81.24 Any party to an appeal to the Tribunal under section 81.19, 81.21, 81.22 or 81.23 may, within one hundred and twenty days after the day on which the decision of the Tribunal is sent to that party, appeal the decision to the Federal Court.

Appeals to Tribunal

Marginal note:Notice to Commissioner

• 81.25 (1) Where an appeal to the Tribunal is instituted otherwise than pursuant to subsection 81.21(1), the Tribunal shall send a notice of the appeal to the Commissioner at Ottawa.

• (2) [Repealed, 2013, c. 34, s. 413]

Marginal note:Hearing of appeal

81.26 The Tribunal may hear an appeal under this Part in private if, on application by any party to the appeal, the Tribunal is satisfied that the circumstances of the case justify the hearing being so held.

Marginal note:Disposition of appeal

• 81.27 (1) After hearing an appeal under this Part, the Tribunal may dispose of the appeal by making such finding or declaration as the nature of the matter may require and by making an order

  • (a) dismissing the appeal; or

  • (b) allowing the appeal in whole or in part and vacating or varying the assessment or determination or referring it back to the Minister for reconsideration.

• Marginal note:Costs

  (2) No costs may be awarded by the Tribunal on the disposition of an appeal.

• Marginal note:Decision of Tribunal

  (3) A decision of the Tribunal disposing of an appeal shall be recorded in writing and include the reasons for the decision, and a copy thereof shall forthwith be sent to the parties to the appeal.

• Marginal note:Penalty where no reasonable grounds for appeal to Tribunal

  (4) Where the Tribunal disposes of an appeal in respect of an assessment or where such an appeal to the Tribunal is discontinued or dismissed without a hearing, the Tribunal may, on application by the Minister, order the person instituting the appeal to pay to the Receiver General an amount not exceeding ten per cent of the amount that was in controversy, if the Tribunal determines that there were no reasonable grounds for the appeal and that one of the main purposes for instituting or maintaining the appeal was to defer the payment of any tax, penalty, interest or other sum payable under this Act.

Appeals to Court

Marginal note:Institution of appeal to Court

• 81.28 (1) An appeal to the Federal Court under section 81.2, 81.22 or 81.24 shall be instituted

  • (a) in the case of an appeal by a person, other than the Minister, in the manner set out in section 48 of the Federal Courts Act; and

  • (b) in the case of an appeal by the Minister, in the manner provided by the rules made under the Federal Courts Act for the commencement of an action.

• Marginal note:Counter-claim or cross-demand

  (2) If the respondent in an appeal under section 81.24 from a decision of the Tribunal desires to appeal that decision, the respondent may do so, whether or not the time fixed by that section has expired, by a counter-claim or cross-demand instituted in accordance with the Federal Courts Act and the rules made under that Act.

• Marginal note:Procedure

  (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that

  • (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part;

  • (b) a copy of a notice of objection filed with the Federal Court under subsection 81.21(3) is deemed to be a statement of claim that is filed with the Court by the person serving the notice and served by that person on the Minister on the day it was so filed by the Minister; and

  • (c) a copy of a notice of objection filed by the Minister pursuant to subsection 81.21(3) or an originating document filed by the Minister pursuant to subsection (1) shall be served in the manner provided in subsection (4).

• Marginal note:Service

  (4) Where a copy of a notice of objection is filed by the Minister pursuant to subsection 81.21(3) or an originating document is filed by the Minister pursuant to subsection (1) and he files two copies or additional copies thereof, together with a certificate as to the latest known address of the other party to the appeal, an officer of the Court shall, after verifying the accuracy of the copies, forthwith on behalf of the Minister serve the copy of the notice of objection or the originating document, as the case may be, on that other party by sending the copies or additional copies thereof by registered or certified letter addressed to that other party at the address set out in the certificate.

• Marginal note:Certificate

  (5) Where copies have been served on a party pursuant to subsection (4), a certificate signed by an officer of the Court as to the date of filing and the date of mailing of the copies shall be transmitted to the office of the Deputy Attorney General of Canada and is evidence of the date of filing and the date of service of the documents referred to therein.

Marginal note:Notice to Tribunal

• 81.29 (1) Where an appeal is instituted to the Federal Court from a decision of the Tribunal, the Court shall send a notice of the appeal to the Tribunal.

• Marginal note:Material sent to Federal Court

  (2) On the receipt of a notice of an appeal under subsection (1), the Tribunal shall send to the Court all material filed with or sent to the Tribunal in connection with the appeal, together with a transcript of the record of proceedings before the Tribunal.

• (3) [Repealed, 2013, c. 34, s. 414]

Marginal note:Hearing of appeal

81.3 The Federal Court may hear an appeal under this Part in private if, on application by any party to the appeal, the Court is satisfied that the circumstances of the case justify the hearing being so held.

Marginal note:Disposition of appeal

• 81.31 (1) After hearing an appeal under this Part, the Federal Court may dispose of the appeal by making such order, judgment, finding or declaration as the nature of the matter may require including, without limiting the generality of the foregoing, an order

  • (a) dismissing the appeal; or

  • (b) allowing the appeal in whole or in part and vacating or varying the assessment or determination or referring it back to the Minister for reconsideration.

• Marginal note:Order

  (2) Subject to subsection (3), on the disposition of an appeal, the Federal Court may order payment or repayment of any tax, penalty, interest, sum or costs.

• Marginal note:Costs

  (3) Where the amount in dispute on an appeal by the Minister, other than by way of counter-claim or cross-demand, from a decision of the Tribunal does not exceed ten thousand dollars, the Minister, on disposition of the appeal, shall pay all reasonable and proper costs of the other party to the appeal in connection therewith.

• Marginal note:Penalty where no reasonable grounds for appeal to Court

  (4) Where the Federal Court disposes of an appeal in respect of an assessment or where such an appeal to the Court is discontinued or dismissed without a hearing, the Court may, on application by the Minister and whether or not the Court awards costs, order the person instituting the appeal to pay to the Receiver General an amount not exceeding ten per cent of the amount that was in controversy, if the Court determines that there were no reasonable grounds for the appeal and that one of the main purposes for instituting or maintaining the appeal was to defer the payment of any tax, penalty, interest or other sum payable under this Act.

Extension of Time for Objection or Appeal

Marginal note:Extension of time by Tribunal

• 81.32 (1) Subject to subsection (6), any person entitled to serve a notice of objection under section 81.15 or 81.17, other than a notice in respect of Part I, or to appeal to the Tribunal under section 81.19 may, at any time before or after the expiration of the time limited by that section for so objecting or appealing, apply to the Tribunal for an order extending that time.

• Marginal note:Procedure

  (2) An application under subsection (1) shall be made by filing with the Tribunal three copies of the application.

• Marginal note:Extension of time by Federal Court

  (3) Subject to subsection (6), any person entitled to serve a notice of objection under section 81.15 or 81.17 in respect of Part I or to appeal to the Federal Court under section 81.2 or 81.24 may, at any time before or after the expiration of the time limited by that section for so objecting or appealing, apply to the Court for an order extending that time.

• Marginal note:Procedure

  (4) An application under subsection (3) shall be made by filing a notice of the application with the Court and serving a copy of the notice on the Deputy Attorney General of Canada at least fourteen days before the application is returnable.

• Marginal note:Reasons

  (5) An application under subsection (1) or (3) shall set out the reasons why the applicant is or was not able to comply with the time limitation.

• Marginal note:Limitation

  (6) No application may be made pursuant to subsection (1) or (3) more than one year after the expiration of the time limited.

• Marginal note:Order

  (7) On application pursuant to subsection (1) or (3), the Tribunal or Court may grant an order extending the time limited if

  • (a) it has not previously made an order extending that time; and

  • (b) it is satisfied that

    • (i) the circumstances are such that it is just and equitable to extend the time,

    • (ii) but for the circumstances referred to in subparagraph (i), an objection would have been made or an appeal would have been instituted, as the case may be, within that time,

    • (iii) the application was brought as soon as circumstances permitted, and

    • (iv) there are reasonable grounds for the objection or appeal.

Purchaser Objections and Appeals

Marginal note:Right to institute proceedings or apply for extensions

• 81.33 (1) Subject to this section, where

  • (a) a vendor of goods has made an application under section 68.2 in respect of the sale of the goods and the application was rejected in whole or in part by the Minister, or

  • (b) a vendor of goods has not paid tax in respect of the sale of the goods

    • (i) on the basis that the tax was not payable by virtue of subsection 23(6), (7), (8) or (8.1) or 50(5), or

    • (ii) on the basis that the goods were sold in circumstances that, by virtue of the nature of the purchaser of the goods or the use to which the goods were to be put or by virtue of both such nature and use, rendered the sale exempt from tax under subsection 51(1)

    and subsequently the vendor was assessed tax by the Minister in respect of the sale and has recovered the amount of that tax, or a part thereof, from the purchaser of the goods,

  the purchaser of the goods may, in substitution for the vendor and in the purchaser’s own name as if he were the vendor, institute proceedings under any of sections 81.15, 81.17, 81.19, 81.2, 81.21, 81.22, 81.23 or 81.24 in respect of the rejection or assessment or apply for an extension, under section 81.32, of the time limited for instituting any such proceedings.

• Marginal note:Condition precedent

  (2) A purchaser may institute proceedings or apply for an extension of the time limited for instituting proceedings pursuant to subsection (1) only if

  • (a) the vendor has unconditionally assigned to the purchaser in the prescribed form his rights, if any,

    • (i) to institute proceedings under sections 81.15, 81.17, 81.19, 81.2, 81.21, 81.22, 81.23 or 81.24,

    • (ii) to make an application under section 81.32, and

    • (iii) to receive a payment pursuant to section 81.16, 81.18 or 81.38

    in respect of the sale and the Minister is served with a true copy of the assignment in accordance with subsection (3);

  • (b) the vendor has not, within the time limited for instituting the proceedings, instituted the proceedings or applied for an extension, under section 81.32, of that time; or

  • (c) the proceedings are an appeal arising from proceedings previously instituted by the purchaser pursuant to subsection (1).

• Marginal note:Service

  (3) Service of a true copy of an assignment on the Minister shall be effected, by prepaid mail addressed to the Minister at Ottawa, within the time limited for instituting the proceedings to which the assignment relates.

• Marginal note:Acceptance of other service

  (4) The Minister may accept a true copy of an assignment notwithstanding that it was not served by prepaid mail addressed to the Minister at Ottawa.

• Marginal note:Deemed extension

  (5) For the purpose of permitting a purchaser to institute proceedings or apply for an extension of the time limited for instituting proceedings pursuant to subsection (1) in the circumstances described in paragraph (2)(b), the time limited for instituting the proceedings is deemed to be extended by thirty days.

• Marginal note:Purchaser stands in place of vendor

  (6) Proceedings and applications under subsection (1) shall be dealt with in all respects as if the purchaser were the vendor and any amounts found, on the conclusion of the proceedings, to be payable under subsection 81.16(1), 81.18(1) or 81.38(1) shall be paid to the purchaser and not to the vendor.

• Marginal note:Exception

  (7) Where a vendor applies for an extension, under section 81.32, of the time limited for instituting any proceedings after the time has expired, the purchaser may not institute the proceedings or apply for an extension of the time limited for instituting the proceedings pursuant to subsection (1).

• Marginal note:Preclusion

  (8) Where a purchaser institutes proceedings or applies for an extension of the time limited for instituting proceedings pursuant to subsection (1), the vendor may not apply for an extension, under section 81.32, of the time limited for instituting the proceedings or, in the case described in paragraph (1)(a), make a further application under section 68.2 in respect of the sale.

• Marginal note:Intervention

  (9) Notwithstanding section 81.34, a vendor of goods may intervene in any proceedings or application for extension of the time limited for instituting proceedings instituted by a purchaser of the goods pursuant to subsection (1), as a party to the proceedings or application.