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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.

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Frequently Asked Questions

If you lost a judicial review case in the Federal Court of Canada you can appeal to the Federal Court of Appeal. If you lose at the Federal Court of Appeal your only recourse is to appeal to the Supreme Court of Canada and you are required to leave of the Supreme Court of Canada to institute that appeal. Should you wish to appeal it is a good idea to engage a lawyer with the relevant experience.

In order to appeal to the Federal Court of Appeal on a tax issue, a judgement must first be obtained from the Tax Court of Canada. A person may apply for judicial review to the Federal Court of Appeal, but only within 30 days of the Tax Court’s judgement. The Federal Court of Appeal may dismiss your appeal, give a decision it considers right, or refer your case back to the Tax Court with additional instructions for a new ruling.

You must begin by filing a Notice of Objection with the CRA for any dispute. If the CRA’s response is unsatisfactory, or if it fails to respond to your notice, you can submit an appeal to the Tax Court of Canada, and only then after to the Federal Court of Appeal. You should retain a qualified Canadian tax litigation lawyer when launching an appeal.

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Pro Tip

CRA Tax Audits

There are over 350,000 tax audit and review actions conducted by the Canada Revenue Agency on a yearly basis. Around 15,000 of these tax audits deal with “cash only” businesses (i.e. the underground economy). Additionally, an estimated 35,000 are tax shelter audits.

Get your CRA tax issue solved


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