Citation: 2009 TCC 464
Date: 20090917
Docket: 2003-1401(IT)G
BETWEEN:
MARK G. WELFORD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Woods J.
[1] The appellant,
Mark Welford, appeals with respect to assessments made under the Income Tax
Act for the 1991, 1992, 1993, 1994 and 1995 taxation years.
[2] The
appellant was assessed tax, penalties and interest in respect of alleged
unreported income in excess of $1,345,000 in the aggregate for all taxation
years.
[3] It is
alleged by the Minister that these amounts were fraudulently received as part
of a scheme to defraud the appellant’s employer, Bell Canada.
[4] In his
original notice of appeal, the appellant denied receiving these amounts. The
position changed, however.
[5] During a
motion brought by the respondent for an order dismissing the appeal for failure
to comply with pre-trial steps, which was heard by former Chief Justice Bowman
on June 2, 2006, September 18, 2006 and October 25, 2006, the appellant stated that
he was no longer disputing that he had received these amounts. The appellant acknowledged
that the amounts were received, but he submitted that tax had already been
withheld by the payor. The appellant confirmed to the former Chief Justice that
the withholding issue was now the only issue to be decided.
[6] Chief
Justice Bowman concluded that the appellant should have an opportunity to
establish his new position. He expressed considerable reluctance, however, and
stated that the appeal had very little, if any, chance of success. In the
result, the motion was dismissed and the appellant was given an opportunity to
amend his notice of appeal to reflect the new position.
[7] An
amended notice of appeal was filed by the appellant on November 8, 2006.
Although it fails to clearly set out that the only issue is whether tax had
been withheld, it is clear from the appellant’s representations to Chief
Justice Bowman that this was his position.
[8] The
appeal was heard on September 15, 2009, despite the fact that the appellant had
informed the Registry the day before that he was not able to attend. I will
comment on his request for an adjournment below.
[9] At the
hearing, counsel for the respondent submitted that the appeal should be
dismissed because the Court has no jurisdiction to adjudicate on whether tax
withholdings have been made.
[10] I agree
with this submission. It is clear from the transcript of the proceedings before
Chief Justice Bowman that tax withholdings are the only issue to be decided.
The Tax Court of Canada has no jurisdiction over this subject matter.
[11] The Tax
Court of Canada derives its jurisdiction from the Tax Court of Canada Act
and various taxing statutes. Even in relation to income tax, the Court does not
have jurisdiction over all matters. The withholding of income tax is one such
matter over which this Court lacks jurisdiction: Boucher v. The Queen,
2004 FCA 47, 2004 DTC 6085; Neuhaus v. The Queen, 2003 DTC 5469 (FCA).
[12] The
appeal should be dismissed for these reasons.
[13] Before
concluding, I would comment concerning a request for an adjournment of the
hearing that was made by the appellant on the day before the hearing.
[14] The
request was brought to my attention, and submissions were promptly received
from counsel for the respondent. After considering the request and the submissions,
I denied the request for adjournment.
[15] The
request was set out in an email communication in which the appellant indicated
that he was not able to appear at the hearing because of a medical problem
involving kidney stones.
[16] In
response, counsel for the respondent submitted as follows:
The
Respondent’s position that the request for adjournment be denied is supported
by the following facts:
a)
it is not timely. On August 26, 2009, I wrote the Appellant an e-mail
requesting information designed to make the hearing of the appeal more orderly
and efficient. I received no reply and no indication that the Appellant would
not be able to proceed to hearing on September 15, 2009. In fact, I have
received no communication from the Appellant respecting his request for an
adjournment until the Court forwarded his e-mail today;
b)
it is not sufficiently documented. More particularly, no medical
evidence is provided demonstrating the Appellant is unable to appear at his
hearing tomorrow or, importantly, when and if, he will ever be able to appear;
c)
the Appellant has previously been permitted to adjourn his appeal on the
eve of the hearing for medical reasons, which the Respondent submits could have
been accomodated;
d)
on its face, the Appellant’s appeal is frivolous. Notwithstanding the
broader allegations in his Amended Notice of Appeal, the Appellant has advised
this Court, specifically former Chief Justice Bowman, that the only issue on
the appeal was whether the monies received were “net of tax”. Contrary to his
previous evidence on discovery, the Appellant now admits that he did, in fact,
receive the unreported income but denies it was received by fraud. He asserts
the unreported income was “net of tax”. Even if true, his appeal must in any
event fail. See exerpt of the Respondent’s written submissions at paragraphs 63
to 72, a copy of which is enclosed.
e)
given the appeal is frivolous on its face since the only issue being
pursued is, that is whether the tax has been paid, outside of the jurisdiction
of the Tax Court of Canada, the only reasonable inference is that the Appellant
is attempting to delay collection of tax owing. Moreover, the Appellant
confirmed his understanding that collection action cannot be taken until after
the appeal is concluded. He did so both before the Registrar hearing the
taxation of the Respondent’s costs awarded by then Chief Justice Bowman and
before then Chief Justice Bowman himself.
f)
the appeal dates back to the 1991 to 1995 taxation years and has been in
this court for 6 years.
[17] In all
the circumstances of this appeal, I was not satisfied that the appellant’s
uncorroborated statement about his current medical condition was true. It was
clear from the Court files that the appellant’s health has not been good for
some time. I was not convinced, however, that the current adjournment request
was not simply a delay tactic.
[18] This
matter has a lengthy procedural history. The notice of appeal was filed in 2003
and the taxation years at issue go back more than 15 years. For most of the
period of the litigation, the appellant has been self-represented.
[19] Last
March, Chief Justice Rip assigned this matter to me for case management. Based
on my review of the Court files at that time, it appeared that this Court had
been convened on nine separate days to deal with procedural matters in this
litigation.
[20] By way of
order dated March 20, 2009, I set the appeal down for hearing on September 15, 2009.
To my knowledge, the Court has had no communication from the appellant during
this period until the adjournment request was received.
[21] Given the
history of this litigation, and the lateness of the request for the
adjournment, I concluded that the interests of justice weighed in favour of no
further delay.
[22] I noted
in particular the repeated submissions to this Court by counsel for the respondent
that the appellant was unduly prolonging the litigation to delay collection.
[23] In all
the circumstances, it was incumbent upon the appellant to provide better
supporting evidence of his inability to attend the hearing on September 15,
2009.
[24] The request for adjournment was denied accordingly.
[25] In the result, the appeal will be dismissed with costs
to the respondent.
Signed at Toronto, Ontario this 17th
day of September 2009.
“J. M. Woods”
Email this Content