Filing an Appeal with the Federal Court of Appeal
If a taxpayer is unsatisfied with the judgment given at the Tax Court of Canada, a further appeal is available as of right (most of the time) to the Federal Court of Appeal. The Federal Court of Appeal acts as a national appellate or review forum over federal courts such as the Tax Court of Canada, and reviews decisions involving most types of claims against the federal government. The Notice of Appeal to the Federal Court of Appeal must be filed by a Canadian tax litigation lawyer within 30 days after the issuance of the Tax Court judgment, with the exclusion of July and August from the calculation of this 30-day period.
The Federal Court of Appeal has the authority and power to dismiss the appeal, give the decision that should have been given by the Tax Court, or in its discretion refer the matter back to the Tax Court for determination in accordance with such directions as the Federal Court of Appeal considers to be appropriate. However, it is not a forum for unsuccessful litigants to present fresh new arguments that they failed to raise at the Tax Court; the role of the Federal Court of Appeal is to provide a review of Tax Court decisions.
Put another way, the difference between the Federal Court of Appeal and the Tax Court in the context of a tax dispute is that while the Tax Court will consider the entirety of the taxpayer’s case with regard to the facts and to how the Canada Revenue Agency governed itself, the Federal Court of Appeal will not review the case put forward by the taxpayer anew; it reviews whether the Tax Court judge properly understood the facts and interpreted the relevant tax legislation and made the right decision.
Because the focus is on whether the Tax Court judge interpreted the relevant statute correctly, arguments presented at the Federal Court of Appeal are often far more sophisticated than those that might be advanced at the Tax Court. For this reason, it is crucial that one of our top Toronto income tax lawyers is retained to prepare and argue your case at the Federal Court of Appeal.
Appeals to Federal Court of Appeal and Supreme Court of Canada
The two final opportunities that a taxpayer has to appeal an assessment once the Tax Court of Canada has made a decision is to first appeal to the Federal Court of Appeal; if unsuccessful there, the taxpayer has one last shot at the Supreme Court of Canada. Note that tax appeals to the Supreme Court of Canada are rarely granted leave; that is, the Supreme Court must decide that the case is important enough to warrant their review.
