Contributing Lawyers

Canada

Cyndee Todgham Cherniak

United States

Susan Kohn Ross

Australia

Andrew Hudson



The President of the Canada Border Services Agency Can Grant Extensions of Time to File Customs Appeals

Yesterday, a client contacted us on the 90th day after receiving a Canada Border Services Agency (CBSA) detailed adjustment statement (DAS), which is an assessment of border taxes (i.e, customs duties, border goods and services tax, interest, administrative monetary penalties, etc.). Pursuant to section 60 of the Customs Act, a person has 90 days to file a request for a redetermination (which is the customs term for an informal appeal).

We advised the client that a request for an extension of time may be made to the President of the CBSA pursuant to section 60.1 of the Customs Act. However, section 60.1 of the Customs Act is discretionary and the President requires certain information to be provided and certain conditions to be satisfied.

Section 60.1 of the Customs Act provides as follows:

Section 60.1(1) - If no [request for a redetermination is made in the 90 day limitation period], a person may make an application to the President [of the CBSA] for an extension of the time within which the request may be made, and the President may extend the time for making the request.

Section 60.1(2) - The application must set out the reasons why the request was not made on time.

Section 60.1(3) - The application must be made to the President in the prescribed manner and form and contain the prescribed information.

Section 60.1(4) - On receipt of an application, the President must, without delay, consider it and notify the person making the application, in writing, of the President's decision.

Section 60.1(5) - If the President grants the application, the request is valid as of the date of the President's decision.

Section 60.1(6) - No application may be granted unless
(a) the application is made within one year after the expiry of the time set out in section 60; and
(b) the person making the application demonstrates that
(i) within the time set out in section 60, the person was unable to act or to give a mandate to act in the person's name or the person had a bona fide intention to make a request,
(ii) it would be just and equitable to grant the application, and
(iii) the application was made as soon as circumstances permitted.

Back to my new client – we submitted a letter prior to the end of the 90th day (but would have had the same statutory rights had it been later).  I have helped many clients with many very good reasons for needing more time to file their requests for redetermination. Section 60.1 permits the President of the CBSA to act reasonably and understand delays. Based on our experience, the President of the CBSA has been very fair. So far, our requests for an extension of time have been favourably received and the extension requests have been granted. That being said, it is possible that the President will not grant an extension of time. One possible scenario is if the person making the request does not have a reason to explain the delay or there is a history of non-compliance and ignoring the requests by the CBSA.

 

I should alsopoint out that if the President does not exercise his/her discretion to grant the extension, an appeal of the refusal may be made to the Canadian International Trade Tribunal.

For more information, please contact Cyndee Todgham Cherniak at 416-307-4168.

 

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