Citation: 2014TCC72
Date: 20140307
Docket: 2013-2685(IT)I
BETWEEN:
EDWIN MORTON,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Bocock J.
I. Nature of Appeal
[1]
Under subsection 163(2)
of the Income Tax Act (the “Act”), the Minister of National
Revenue (the “Minister”) may impose a penalty where a taxpayer is grossly
negligent or knowingly makes a false statement in filing a return, form,
certificate or answer relating to a taxation year.
[2]
The Appellant, Mr.
Morton, filed his income tax returns for 1998, 1999, 2000 and 2001 (the
“Relevant Years”); he paid taxes calculated on taxable income of $105,677.00,
$118,529.00, $198,530.00 and $151,107.00 for each respective year. These
returns were reassessed as filed by the Minister. The normal reassessment
periods expired, but in 2008, the taxpayer, utilizing the provisions of
subsection 152(4.2) filed T1 Adjustment Requests (the “Requests”) with the
Canada Revenue Agency (“CRA”).
[3]
Mr. Morton requested
that his income, as previously filed and assessed in the returns, be adjusted
to include the following amounts of business income and expenses for each tax
year:
|
T1 – Adjustment Request – Form T1-ADJE(08)
|
|
Tax Year
|
Additional Other Income described in Requests as
“Additional Money Collected as Agent
for Principal”
|
Additional Other Expenses described in Requests as
“Money Paid to Principal as Agent”
|
Adjusted Net Income
(Loss)
|
|
1998
|
$25,689.00
|
($124,664.00)
|
($98,975.00)
|
|
1999
|
$26,777.00
|
($159,518.00)
|
($132,741.00)
|
|
2000
|
$29,584.00
|
($247,449.00)
|
($217,865.00)
|
|
2001
|
$28,654.00
|
($186,509.00)
|
($157,853.00)
|
[4]
Each amount in the
final column in the chart above if, and when, applied by the Minister to the
taxable income contained in the previously filed returns would have generated an
aggregate refund amount of all tax previously withheld from the Appellant at
source. If acted upon, the Requests would have generated refunds in excess of
$202,000.00. This did not occur. The Minister denied the Requests and
calculated and levied penalties (the “Penalties”). The amounts of the Penalties
were agreed at the commencement of the hearing: $12,999.42, $16,365.84 $28,215
and $17,732.97 for each of the Relevant Years. Mr. Morton appeals to vacate the
Penalties.
II. Testimony
[5]
Mr. Morton admitted or
testified that there was no documentation to substantiate any of the income,
expenses or losses claimed in the Requests. Mr. Morton confirmed in testimony
that he knew when he made the Requests that he did not receive the income nor
incur the expenses claimed. The Appellant offered reasons for these knowing
acts: stress related to financial difficulties, marriage breakdown and the loss
of access to his business books and records in 2007 and 2008 some years after
filing the returns. Accordingly, Mr. Morton submitted the Requests without a
detailed review, knowing the massive amounts were fictitious. He stated he did
so in the hope of initiating the Requests and thereafter filing accurate
amounts with supporting documentation. He stated that he gave no thought to the
fact the CRA would review and might rely upon the Requests. Instead, he stated
that he felt that CRA would first request supporting materials. If he located
same, he could adjust his Requests to conform to the then hopefully accessible
documents. If he could not locate the documentation or it did not exist, he
would simply forswear the Requests.
III. Summary of Appellant’s Submissions
[6]
Appellant’s counsel
offers the following for vacating the penalties:
(i)
the reassessment is
statute barred since factually no misrepresentation has occurred in the filing
of a return under subsection 152(4) of the Act; but merely in supplying
information under the Act, and in the absence of fraud, mere information
supplied to the Minister is not sufficient to reassess outside the normal
reassessment period;
(ii)
no refund nor notice of
reassessment was generated by which the Minister conferred or evidenced a
benefit to the Appellant arising from the fictitious Requests;
(iii)
in any event, no gross
negligence, giving rise to a penalty, has occurred since a T1-Adjustment
Request is not a return, form, or certificate prescribed under subsection
162(3) of the Act; and,
(iv)
various interpretation
circulars, advance rulings and policy papers of the CRA indicate penalties will
only be assessed in respect of an income tax return and not in the instance of
an audit or a statute barred adjustment request.
IV. Analysis and Decision
[7]
Prior to a point by
point analysis of the evidence in light of the Appellant’s submissions, the
Court finds, as a matter of fact based upon admissions and testimony, that Mr.
Morton intentionally, knowingly and without reliance on another person or
advisor supplied false information in the Requests. He claimed quantitatively
enormous amounts as fictitious expenses for the Relevant Years. Although gross
negligence would be sufficient, the Court finds Mr. Morton sought to utilize
subsection 152(4.2) and the Requests to adjust his tax returns by knowingly
making such false statements. Further, no documentary evidence was tendered
supporting the claimed stress reaction of sufficient seriousness to mitigate or
explain such a finding of gross negligence (Rohani v R, 2009 TCC 88).
[8]
Given the foregoing,
unless the Appellant’s legal arguments are accepted, the Penalties shall stand.
For the reasons that follow, the Court rejects these arguments, dismisses the
appeal and upholds the Penalties.
a) No misrepresentation in filing a return or
fraud in providing information under subsection 152(4)
[9]
As to the absence of
misrepresentation on a return or fraud under subsection 152(4) of the Act,
the factual findings of this Court simply do not support such an assertion. The
Appellant is an electronic systems engineer, schooled in England and a professional engineer in good standing in this country and of similar designation in
the United Kingdom. By his own testimony, he analyses systems from a high
level, focusing on their supervision from inception to conclusion. By contrast,
his testimony that he was not aware of the object, intent and consequences of
filing the Requests belies certain obvious and conflicting facts. Firstly, Mr.
Morton fastidiously and accurately filed all his previous tax returns including
those for the Relevant Years. Secondly, he experienced inexplicable
premonitions of unclaimed income, expenses and potential losses which coincidentally
and conveniently arose after losing possession of the alleged records, rather
than during the six to eight previous years he had custody of same and during
which period he accurately filed his tax returns. Thirdly, he knew exactly the
form to complete and submit in order to make the Requests purportedly without
assistance from others. This is in contrast to the proclaimed uncertainty,
ignorance and naïveté of the process otherwise knowingly initiated without supporting
information or the disclosure to the Minister of Mr. Morton’s alleged
predicament (loss of records) against the looming ten year limitation under
subsection 152(4.2).
[10]
Factually the court
finds that the Mr. Morton needed cash; the filing of these fictitious Requests
would be a convenient and quick solution and would otherwise, as he may have
originally thought, be carried out with impunity. Given the education of the
Appellant, his remarkable memory during testimony of his career path and
precise advancement dates, his history of previous compliance and, thereafter,
his incongruous and inexplicable absence of comprehension, this Court finds
these T1-Amendment Requests were not only misrepresentations, but they were
quantitatively massive, prima facie fraudulent misrepresentations of Mr.
Morton’s alleged income and expenses for the Relevant Years. They were
delivered, unsolicited, as “information” supplied under the Act. The
sole purpose for conjuring up these extraordinary amounts and supplying them to
the Minister was to manufacture the artifice of a tax refund of all amounts
previously withheld and constituting tax paid. Given that finding of fact, the
subsequent proffered befuddlement of Mr. Morton is simply, on balance, not
believable.
[11]
This factual finding of
fraud in supplying information under the Act clearly removes any
argument submitted by Appellant’s counsel that innocent misrepresentation in
the supply of information is not sufficient for the reassessment outside the
normal reassessment period. Whatever legal conclusions may be drawn from Ross
v Her Majesty The Queen, 2013 TCC 333, such obiter dicta will never
suggest that fraudulent misrepresentation, when found as a matter of fact,
precludes the application of reassessment rights by the Minister outside the
normal reassessment period. Thus, reference to College Park Motors v
Her Majesty the Queen, 2009 TCC 409 is similarly inapplicable. Additionally,
Mr. Morton sought to have the Relevant Years reopened and deliberately requested
that his taxable income be re-examined after the normal reassessment period. He
requested that the Minister infuse the fictitious numbers into an otherwise
statute barred assessment years. Such a request could not be factually further
from the discovery of innocent misrepresentation through a CRA audit or
investigation as was the case in Ross and College Park Motors.
b) The Absence of a Refund or Reassessment
reliant upon the Request precludes a penalty
[12]
The absence of a
reassessment or refund issued by the Minister, in reliance upon the Request, as
a bar to imposing the Penalties lacks entirely an appreciation of this
taxpayer’s intention, the intention and expectation of each taxpayer under the Act
when filing a T1 – Adjustment Request and the plain meaning of subsections
152(4) and 152(4.2).
[13]
The location of the
statutory provision (subsection 152(4.2)), which permits the Requests and the
taxpayers ability to make application and request a re-determination,
immediately follows the right of the Minister to reassess beyond the normal
reassessment period. Subsection 152(4.2) allows the taxpayer an extended period
to apply and request a redetermination by the Minister, even after the time
when the Minister unilaterally may not do so. The Minister normally has three
years to reassess, but the taxpayer has ten years to make an adjustment
request, albeit any re-determination, when requested by the taxpayer, is
discretionary on the part of the Minister.
[14]
The relevant provisions
of subsection 152(4.2) are as follows:
(4.2) Notwithstanding subsections
(4), (4.1) and (5), for the purpose of determining, at any time after the end
of the normal reassessment period of a taxpayer who is an individual (other
than a trust) or a testamentary trust in respect of a taxation year, the amount
of any refund to which the taxpayer is entitled at that time for the year, or a
reduction of an amount payable under this Part by the taxpayer for the year,
the Minister may, if the taxpayer makes an application for that determination
on or before the day that is ten calendar years after the end of that taxation
year,
(a) reassess tax,
interest or penalties payable under this Part by the taxpayer in respect of
that year; and
(b) redetermine the
amount, if any, deemed by subsection 120(2) or (2.2), 122.5(3), 122.51(2),
122.7(2) or (3), 127.1(1), 127.41(3) or 210.2(3) or (4) to be paid on account
of the taxpayer’s tax payable under this Part for the year or deemed by
subsection 122.61(1) to be an overpayment on account of the taxpayer’s liability
under this Part for the year.
[15]
If one requests an
adjustment, one expects the Minister to reasonably consider it, reopen the
taxation year in question and act upon the request. In exercising that
discretion, the Minister may reassess tax, interest or penalties (paragraph
4.2(a)) and re-determine the amount to be paid on account of tax
(paragraph 4.2(b)). To suggest that the failure to issue a notice of
reassessment and/or pay a refund bars the imposition of a penalty is legally
non-sensical. As an example, if that were true, the ability of the Minister to
levy penalties would be perfected provided CRA issued a reassessment reliant
upon the Request, and then immediately issued a further reassessment rescinding
the first reliant reassessment. The existence of a single day or a matter of
minutes would suffice. The Court imagines and anticipates the outrage of
taxpayers and their counsel over such duplicitous Ministerial conduct designed
solely to feign reliance upon a brazenly concocted T1 - Amendment Request.
[16]
Further, if the
combined effect of subsections 152(4.2) and 163(2) were such to preclude
imposing a penalty unless a notice of reassessment or refund indicates reliance
by the Minister upon the fraudulent misrepresentation, the absurdity is
additionally manifest. Where the precondition for reassessment under 154(2)
exists (in this appeal, fraudulent misrepresentation), the period for
reassessment is limitless. In this very appeal given such facts, the Minister
could issue a reassessment tomorrow, revoke it by further reassessment the day
following and with the latter impose the Penalties. Instead, the Minister has
rightfully evaluated the Appellant’s ploy for what it was and assessed the
Penalties in one step.
[17]
Moreover, when one
examines the context and purpose of the section, it allows the Minister, “for
the purpose of determining”…“,the amount of a refund or a reduction of an
amount payable,”…“to reassess tax, interest or penalties” …“payable
by the taxpayer in respect of that year”(underscoring added). Simply
put, for the purpose of determining the amount of the refund request, the
Minister denied the Request and imposed a penalty, but both actions related to
the determination of the amount of a refund, as requested by the taxpayer when
instituting the Requests. Subparagraph 152(4.2)(a), as reproduced above,
includes reference to penalties and does not by its plain wording limit the
Minister to “reduce”, but to “reassess” tax, interest and penalties.
c) T1-Adjustiment Request not a “return” within
meaning of 163(2)
[18]
Appellant’s counsel
further submits that subsection 163(2) does not apply because the Requests made
by the Appellant were not “returns” within the meaning of that subsection or
under the Act, generally. Further, Appellant’s counsel argues that a T1
– Amendment Request is not a “return” because all of the words “form”, “certificate”,“statement”
or “answer” have specific meanings when they are used in subsection 163(2) of
the Act and do not include by definition a T1 – Amendment Request.
[19]
The Court turns to the
actual subsection:
163(2) Every person who, knowingly, or
under circumstances amounting to gross negligence, has made or has participated
in, assented to or acquiesced in the making of, a false statement or omission
in a return, form, certificate, statement or answer (in this section referred
to as a “return”) filed or made in respect of a taxation year for the purposes
of this Act, is liable to a penalty of the greater of $100 and 50% of the total
of
(a) the amount, if any, by
which
(i) the amount, if any, by which
(A) the tax for the year that would be
payable by the person under this Act
exceeds
(B) the amounts that would be deemed by
subsections 120(2) and
(2.2) to have been paid on account of the person’s tax for the
year
if the person’s taxable income for the
year were computed by adding to the taxable income reported by the person in
the person’s return for the year that portion of the person’s understatement of
income for the year that is reasonably attributable to the false statement or
omission and if the person’s tax payable for the year were computed by
subtracting from the deductions from the tax otherwise payable by the person
for the year such portion of any such deduction as may reasonably be
attributable to the false statement or omission
exceeds
(ii) the amount, if any, by which
(A) the tax for the year that would have
been payable by the person under this Act
exceeds
(B) the amounts that would be deemed by
subsections 120(2) and (2.2) to have been paid on account of the person’s tax
for the year
had the person’s tax payable for the year been
assessed on the basis of the information provided in the person’s return for
the year,
[20]
A simple examination of
the subsection renders such an argument deficient of logic and meaning. As to
purpose and context, the simplistic and efficient use of T1-Amendment Requests
allows taxpayers to effectively apply to “amend” their returns without the need
for taxpayers to file fully amended returns where they wish to initiate a
request within subsection 152(4.2) or where taxpayers are otherwise beyond the
period to do so.
[21]
In fact, a T1 –
Amendment Request very closely emulates a T1 – Tax Return in both form and
content. It employs a similar format, numbered line items and, more
importantly, the taxpayer’s certification that the “information on this form
and any documents attached is, to the best of my knowledge, correct and
complete.”
[22]
The use of this “form”,
although not officially prescribed under the Act, is a fast, convenient
and accepted method by which taxpayers make application for a determination
under subsection 152(4.2) of the Act. To suggest that the Minister,
through the CRA, taxpayers and this Court alike should not consider this
“application” as a “form” containing “statements” and the concluding
“certificate” as the very process to initiate and cause a determination under
subsection 152(4.2), including the possibility of triggering the broad wording
of subsection 163(2), is not legally supportable. Such a suggestion ignores the
plain text, but also the context and purpose of both sections and the
self-filing, voluntary nature of the regime embedded within the Act.
Additionally, in the context of subsection 163(2) itself, the use of the words
“in this section” instructively redefines the sense of such words to their
ordinary meaning and deems them a “return” thereby removing such words from
their otherwise specifically ascribed definitions found elsewhere in the Act.
[23]
Plainly and clearly, a
T1-Amendment Request, and the information certified within it by the taxpayer
to be accurate, is a “return” within the meaning of the imbedded definition of
subsection 163(2) of the Act. In this appeal, save for the taxpayers
name and address, all of the information included in such a “form”, “certificate”
or “statement” (collectively defined in the subsection as a “return”) was
knowingly, unilaterally and falsely made solely to generate a refund and lessen
tax otherwise correctly assessed and payable. The plain meaning of subsection
163(2) and its context and purpose within the Act, when coupled with the
fraudulent misrepresentations of the Appellant, yearn for the imposition of the
Penalties.
d) CRA
Interpretation Bulletins and Advance Rulings
[24]
Lastly, Appellant’s
counsel indicated that a certain Information Circular (IC07-1 Taxpayer Relief
Provisions) and CRA Technical Interpretation Documents (2010-035651117 and
2009-034429117) provide guidance to the Court to the effect that penalties are
not to be imposed on T1-Amendment Requests. Information Circular IC07-1 and
specifically paragraph 74 therein as referenced by Counsel, states that CRA
will not generally accept a request where the adjustment of a statute-barred
year of an individual would result in the increase of taxes, interest or
penalties to the returns of other individuals that are statute-barred
from reassessment. Even if the wording were unequivocal (i.e. if the word
“generally” did not appear), it would be inapplicable to this case since no other
taxpayer is involved. As to the advance rulings cited, one relates to a CRA
instituted audit and the other to the methodology of calculation of penalties.
Neither of these fact situations is analogous to that before the Court, even if
either were binding authority.
[25]
Accordingly, the appeal
is dismissed and the Penalties are upheld. There shall be no order as to costs.
Signed at
Toronto, Ontario, this 7th day of March 2014.
“R.S. Bocock”
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