Tax Court of Canada


Tax

Income tax

Administration and enforcement

Tax Court rules not permitting taxpayers to be represented by chartered accountant on tax appeal

Representation. Individual and corporate taxpayers brought motions to be represented by chartered accountant in general procedure tax appeal. Motions dismissed. Pursuant to R. 30(1) of Tax Court of Canada Rules (General Procedure), individual taxpayers could represent themselves or retain lawyer. Rule did not give court discretion to allow agent to represent individual. Rule 30(2) of Rules stated that where party to proceeding was not individual, that party shall be represented by counsel except with leave of court and on any conditions it may determine. Section 17.1 of Tax Court of Canada Act provided that parties may appear in person or be represented by counsel. Words “in person” meant “physically present”. Corporation, being creation of law with no physical substance, could not be physically present in court. Traditional common law interpretation was that corporation could not appear in person. Tax Court of Canada’s implied power to control its own process could not be used to allow representation in manner specifically prohibited by Act. Previous decisions of Tax Court applied R. 30(2) of Rules in manner that allowed officers, directors or shareholders to represent corporation in general procedure appeals, but conflict with s. 17.1(1) of Act was not brought to Tax Court’s attention in those cases so they were not of assistance. Section 17.1(1) of Act did not allow corporation to appear in person. In general procedure, only option available to corporation was to be represented by counsel. Corporate taxpayers’ motions were dismissed because accountant was not lawyer and s. 17.1(1) of Act prevented anyone other than lawyer from representing corporation in general procedure.

Masa Sushi Japanese Restaurant Inc. v. The Queen (2017), 2017 CarswellNat 6705, 2017 TCC 239, David E. Graham J. (T.C.C. [General Procedure]).

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