This recent tax court case demonstrates the difficulty in supporting the headline assertion by a taxpayer. As this is a common reason given by taxpayers for not appealing their assessment within the statutory 90 days limit (or 90 days and 1 year in special cases) the courts have devised an analytical framework to decide the question whether an assessment was correctly served to the taxpayer:

[56] Where a taxpayer alleges that a notice of assessment was not received, the Court must consider the “full evidentiary record with regard to the statutory presumption found in subsection 244(14) of the Act (which presumes a notice of reassessment to have been mailed on its date)” (ConocoPhilips, para. 8).

[57] In this instance, both parties agree that an appropriate analytical framework, involving a four-step test, was described by Justice Graham in Mpamugo v. HMTQ, 2016 TCC 215 (“Mpamugo”) (para. 6) (aff’d 2017 FCA 136).

[58] The first step involves an assertion by the taxpayer that the notice of assessment was not mailed at all or was not mailed to the correct address.

[59] The second step requires that the Minister prove, on a balance of probabilities, that the notice of assessment was mailed. If the Minister is able to do so, the mailing is presumed to have occurred on the date set out in the assessment.

[60] Use of the word “presumed” in subsection 244(14), gives rise to a rebuttable presumption. As part of the third step, the taxpayer may introduce evidence to prove that the assessment was actually mailed on a different date or to the wrong address. Justice Graham went on to explain the fourth step as follows:

Step 4: Once the mailing date is established (either through the presumption or through proof of a different date), the assessment is deemed to have been made on that date (subsection 244(15)) and the Notice of Assessment is deemed to have been received on that date (subsection 248(7)). These deeming provisions are not rebuttable. (…)

In the present case the court determined that on the balance of probabilities (more likely than not) that the CRA had properly sent the assessment to the taxpayer and that they had not properly objected within the statutory timeline. The court also reaffirmed that they are not able to extend the statutory limit for equity purposes:

[54] Service of a valid notice of objection “is a condition precedent to the institution of an appeal.” If there is no evidence of a valid notice of objection, the appeal should be quashed as the Court has no jurisdiction “to further extend the time for equitable reasons”: Bormann v. Canada, 2006 FCA 83 (paras. 3-6).

Finally, the court noted:

[74] The Court agrees with the Respondent that there are gaps in the Appellant’s evidence. The first concern is that mail delivered to 300 Sovereign Road could be left unattended in the lobby that was accessible to anyone who entered the building.

The last note by the court is important because it implicitly suggests that the taxpayer cannot rely on “the dog ate my homework” as a reason for not objecting to an assessment from the CRA.