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Indigenous - Income Tax. Zachary v. Canada
In Zachary v. Canada (Fed CA, 2026) the Federal Court of Appeal dismissed an appeal, this brought by a taxpayer against an order "dismissing the appellant’s application for an extension of time to file a notice of objection to assessments issued under the Income Tax Act".
Here the court considered the argument that Income Tax procedural rules do not apply to him as a registered Indians, and additionally - the argument that as "an Indigenous person and based on constitutional and treaty rights, he was not a citizen or resident of Canada and was therefore not subject to income tax or the procedural rules in the Income Tax Act":[4] The Tax Court determined that it could not address the appellant’s argument that the Income Tax Act did not apply to him by virtue of section 35 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, because the argument had been raised without the necessary notice of constitutional question. The Tax Court noted that, in any event, no supporting evidence had been offered. The Tax Court considered but rejected the appellant’s alternative argument that, as an Indigenous person and based on constitutional and treaty rights, he was not a citizen or resident of Canada and was therefore not subject to income tax or the procedural rules in the Income Tax Act. Only the application of procedural rules was relevant to the Tax Court’s reasons.
[5] The appellant does not dispute the Tax Court’s conclusion that he did not comply with the procedural requirements under the Income Tax Act for an extension of time to file a notice of objection. However, the appellant submits that the Tax Court erred in applying the Income Tax Act procedural rules to him, based on the arguments he made at the Tax Court regarding his status as a registered Indian. These are legal issues, reviewable for correctness: Dumas v. Canada, 2022 FCA 174 at para. 6; Antrobus v. Canada, 2024 FCA 143 at para. 11; Housen v. Nikolaisen, 2002 SCC 33 at para. 8.
[6] At the hearing, the appellant made additional submissions on not being subject to income tax because of his status. As explained at the hearing, however, the issue of whether the appellant is subject to taxation was not before the Tax Court and is not before this Court. The only issue being considered is whether the appellant was required to comply with the procedural rules in the Income Tax Act in order to proceed with his tax refund requests.
[7] The appeal must be dismissed, substantially for the reasons given by the Tax Court. The appellant has not identified an error in the Tax Court’s reasons warranting this Court’s intervention.
[8] As the Tax Court judge noted, to seek a finding that legislation is constitutionally invalid, inoperable or inapplicable, the appellant must have served a notice of constitutional question on the Attorney General of Canada and the attorney general of each province. The appellant did not complete this essential step and thus the constitutional issues he raised could not be considered: Tax Court of Canada Act, R.S.C. 1985, c. T-2; Bekker v. Canada, 2004 FCA 186 at para. 8; Guindon v. Canada, 2013 FCA 153 at paras. 22–32, aff’d 2015 SCC 41 at para. 15.
[9] In any event, the statutory time limits to file a notice of objection to a tax assessment apply even where the constitutional and treaty rights of Indigenous peoples are asserted: Horseman v. Canada, 2018 FCA 119 at para. 4 [Horseman], citing in particular Canada (Attorney General) v. Lameman, 2008 SCC 14 at para. 13; see also Shot Both Sides v. Canada, 2024 SCC 12 at para. 60. The appellant was required but failed to comply with the procedural rules in the Income Tax Act relating to filing notices of objection and requests for extensions of time. Neither the Tax Court nor this Court can grant the appellant the relief he seeks: Horseman at para. 7.
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