[OFFICIAL ENGLISH TRANSLATION]
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Citation: 2004TCC550
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Date: 20040816
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Docket: 2002-3447(IT)G
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BETWEEN:
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DENIS CORRIVEAU,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
McArthur, J.T.C.C.
[1] These are appeals filed by Mr.
Denis Corriveau from the Notices of Assessment issued by the
Minister of National Revenue (hereinafter the
"Minister") for the 1995, 1996 and 1997 taxation years.
These Notices of Assessment established the Appellant's
taxable income at $128,093 for the 1995 taxation year, $14,204
for the 1996 taxation year, and $0 for the 1997 taxation
year.
[2] The appeals were heard under the
general procedure because of the size of the amounts at issue.
The Appellant, moreover, opted not to be represented by counsel.
The Appellant maintains that the Notices of Assessment
incorrectly established his taxable income for the years at
issue, because the Minister failed to consider certain
expenditures in respect of these taxation years and because the
Minister used the accrual accounting method, whereas the
Appellant records his income and expenditures on a cash
basis.
[3] In establishing these Notices of
Assessment, the Minister based his opinion on the following
factual hypotheses:
a) prior to
May 5, 1995, the Appellant was the owner of the following 13
rental buildings:
131 5th Street
134 Carter
15 Pinder East
169 Georges
68-72 Montréal
507-509 Cardinal Bégin East
22 Concession 5
493-503 Cardinal Bégin East
Chalet Lac Vaudry
151 6th Street
348-350 Larivière
38-40 Poirier Street, Lac Duffault
53 Matapédia Street, Rouyn-Noranda
b) the
Appellant had not maintained any account books with regard to any
of these rental buildings;
c) the
Appellant claimed his rental expenses using the cash method of
accounting;
d) the
Appellant claimed expenses paid in 1995, but in respect of prior
years;
e) the
Appellant deposited all his rental income in a personal bank
account;
f) the
Appellant used the same bank account for his personal and
business operations;
g) the
Appellant reported the following gross rental income:
1995:
$26,569
1996:
$ 8,277
1997:
$ 0
h) these gross
rental income amounts were accepted by the Minister without an
audit;
i) the
Minister granted the Appellant the rental expenses supported by
substantiating documentation on an accrual basis;
j) on
May 5, 1995, the Appellant transferred ownership of all his
rental buildings, with the exception of those located at 38-40
Poirier, Lac Duffault and 53 Matapédia Street,
Rouyn-Noranda;
k) on May 5,
1995, these 11 rental buildings were transferred to the
corporation 9019-4754 Québec Inc.;
l) the
Appellant was the sole shareholder of 9019-4754
Québec Inc.;
m) the Appellant
claimed rental expenses for the period from May 5 to December 31,
1995, for the 11 buildings that were transferred on May 1995 to
9019-4754 Québec Inc.;
n) the
eligible rental expenses in 1995 are $66,309;
o) on August
21, 1996, the Appellant sold the building located 38-40 Poirier,
Lac Duffault;
p) the
Appellant suffered a deductible capital loss of $691 as a result
of this sale;
q) on November
29, 1996, the Appellant sold the building located at 53
Matapédia Street, Rouyn-Noranda;
r) the
Appellant made a taxable capital gain of $431 on the sale of the
land in this transaction;
s) the
building itself was a depreciable asset;
t) the
loss of $6,055 on the disposition of this building is not
eligible;
u) eligible
rental expenses in 1996 are $12,823;
v) the
Minister calculated the Appellant's taxable capital gain at
$61,073 and $18,570 for the 1995 and 1996 taxation years
respectively;
w) the Minister took
into account a non-capital loss of $50,915 for the 1993 taxation
year;
x) the loss
cited in the previous paragraph was taken into consideration for
the purpose of calculating the Appellant's taxable income for
the 1995 taxation year;
y) the
Appellant had a net capital loss of $18,644 in 1988;
z) the
Appellant had a net capital loss of $22,986 in 1990;
aa) the Appellant had a
net capital loss of $13,813 in 1991;
bb) the net capital losses
cited in paragraph y), z) and aa) were taken into consideration
for the purposes of calculating the Appellant's taxable
income for the 1995 taxation year.
TESTIMONY
[4] Mr.Pierre Lavallée and the
Appellant himself testified for the Appellant. Mr. Richard East
testified for the Respondent.
[5] The role of Mr. Lavallée in
this case remains unclear. He maintained throughout his testimony
that he was not acting as the representative of the Appellant.
Nonetheless, Mr. Lavallée submitted a number of
arguments for the Appellant and on his behalf.
[6] Mr. Lavallée is a lawyer in
the Rouyn-Noranda region. During the years at issue, he was
working in a law office, "Gagné Trudel", which
provided the Appellant with legal services, such as incorporating
companies and selling buildings. Mr. Lavallée thus
maintained a professional relationship with the Appellant. In his
testimony, Mr. Lavallée stated that, during the years at
issue, the legal fees for incorporating a company varied between
$1,000 and $1,200. At a maximum, they could be $1,500.
Furthermore, Mr. Lavallée admitted that his legal
expertise was more in the insurance field and for that reason he
did not handle corporate legal files or commercial law.
Nonetheless, Mr. Lavallée said that he had seen the
Appellant's files on several occasions and maintained that he
could state that the Appellant had in fact incurred these legal
costs.
[7] The Appellant testified that he
has recorded his income and expenses according on a cash
basis since 1972. He further explained that he had been audited
by the Canada Customs and Revenue Agency (hereinafter
"CCRA") in 1985 and that no one had advised him at that
time that he should use the accrual method rather than the cash
method. The Appellant had accordingly assumed that the method he
was using was satisfactory. Beyond that, the Appellant gave
explanations which, in his view, showed that the assessments of
the Minister were incorrect. By way of example, the Appellant
explained that the expenditures attributable by the auditor to
the building located at 38-40 Poirier were in fact attributed to
the building at 151 6th Street, and in so doing, the Appellant
maintained that these were maintenance expenses and not capital
expenses.
[8] Mr. East was the last witness to
testify. Mr. East has been an auditor for CCRA since1991. He
explained that the Appellant's file had been assigned to him
in April 1999, but that the audit of the file had not closed
until August 2000. According to Mr. East, an audit of this type
normally takes between two and three months. Mr. East explained
that the Appellant had used the cash method, which had
complicated the audit process. Furthermore, the Appellant did not
use a ledger and kept his invoices in plastic bags or in file
folders that were not organized. Mr. East had accordingly had to
piece together the Appellant's invoices with the help of
spreadsheets, which explained why the audit had taken over 15
months.
[9] Mr. East summarized as follows the
reasons why he had disallowed the deduction of a number of
expenses claimed by the Appellant. On the one hand, the Appellant
used the accrual method. He was claiming expenses paid during the
year but which could have been incurred during previous years.
The Appellant also claimed expenditures which had been incurred
by one or other of the companies of which he was a shareholder.
Since these expenditures were attributable to the companies, the
Appellant was not able to deduct them from the calculation of his
income. By way of an example, Mr. East had disallowed the
deduction of legal fees claimed by the Appellant, on the grounds
that these fees were attributable to the company that owned the
buildings. Lastly, the Appellant had failed to adequately justify
some of the expenditures he was claiming. In the absence of
supporting documentation, no deduction could be granted for these
expenditures. For example, the Appellant had claimed the
deduction of expenses in respect of the purchase of construction
materials as current expenses. The Appellant maintained that
these purchases had been used in repairing a building located at
151 6th Street, in which there had been two fires in the early
1990s. Since the Appellant had no insurance on this building, he
was of the opinion that the repair work constituted current
expenses, which were deductible. Mr. East explained that the
invoices provided by the Appellant did not indicate the building
for which the materials were intended. Since the Appellant had
made major renovations to another building that belonged to him,
Mr. East had assumed that the expenditures were related to that
other building. As a result, Mr. East had deemed these
expenditures to be capital expenses and had accordingly
disallowed the deduction thereof.
ISSUES IN DISPUTE
[10] The conclusions sought by the Appellant
were difficult to identify. During his pleadings, the Appellant
summarized the conclusions he requires essentially as
follows:
1. The Appellant is asking for
permission to use the cash method, as opposed to the accrual
method used by the Minister in preparing the Notices of
Assessment. Failing that, the Appellant is asking for permission
to amend his income tax returns for the 1991 to 1994 taxation
years so as to include the expenses incurred during these years,
but which were in fact paid in 1995;
2. The Appellant is asking that the
documents that were not considered by Mr. East when the Notices
of Assessment were prepared be considered;
3. The Appellant is seeking to have
the expenses incurred in the repair of the building located at
151 6th Street attributed to that building and that they be
deemed current expenses and not capital expenses;
4. The Appellant would like the
deduction for brokers' fees in respect of the transfer of his
shares be allowed and, failing that, that the transfer be deemed
to have been for $0 per share rather than of $4.50 a share in
order to eliminate the capital gain arising out of this
transfer.
ANALYSIS
[11] First, the credibility of the Appellant
is not being challenged. It is also important to remember that it
is impossible for me to make a finding with regard to the Notice
of Assessment in respect of the 1997 taxation year, since the tax
owing is zero. In Okalta Oils Limited v.
M.N.R., [1955] S.C.R. 824, the Supreme Court of Canada
established that an assessment in respect of which no tax is
payable gives the taxpayer no right of appeal[1]:
Under these provisions, there was no assessment if there was
no tax claimed. Any other objection but one ultimately related to
an amount claimed was lacking the object giving rise to the right
of appeal from the decision of the Minister to the Board.
The principle was reaffirmed by the Federal Court of Appeal in
Canada v. Consumers' Gas Co., [1987] 2
F.C. 60, at page 67, paragraph 13:
What is put in issue on appeal to the courts under the
Income Tax Act is the Minister's assessment. While the
word `assessment' can bear two constructions, as being either
the process by which tax is assessed or the product of that
assessment, it seems to me clear, from a reading of section 152
to 177 of the Income Tax Act, that the word is there
employed in the second sense only. This conclusion flows in
particular from subsection 165(1) and from the well established
principle that a taxpayer can neither object to nor appeal from a
nil assessment.
There are some exceptions, where the Court can rule on an
assessment in respect of which no tax is payable.[2] However, these exceptions
do not apply to this appeal.
[12] The Appellant stated that he used the
cash method and that he had in fact asked for permission to file
his tax returns based on this method. In support of his claim,
the Appellant filed en liasse exhibit A-1 comprising: an
invoice in the amount of $455.82 from "Fiscalité
Martial Lupien", nine faxes comprising accounts from the
"Rouyn-Noranda School Board" for tax arrears, 14
cheques signed by the Appellant and made out to the
"Rouyn-Noranda School Board", and a statement of
account from "location Rouanda 1991 Inc." in the amount
of $1,222.33. All these expenses were incurred by the Appellant
during years prior to the ones for which he claimed the
deduction.
[13] The Appellant also submitted as exhibit
A-9: a cheque in the amount of $2,307.30 made out to the order of
the "City of Rouyn-Noranda" and nine pages as evidence
of water tax arrears totalling more or less the same amount.
These are amounts that were owing by the Appellant in respect of
water tax arrears which in fact had been incurred during previous
years.
[14] It is not open to the Appellant to the
cash method. In Banner Pharmacaps NRO Ltd. v. The
Queen, T.C.C., No. 2001-199(IT)G, February 26, 2003,
[2003] T.C.J. No. 115, Mogan J. stated the following at
paragraphs 37 to 39:
In an old case, Ken Steeves Sales Ltd v. M.N.R., 55 DTC
1044, the Exchequer Court held that, when determining the profit
the loss of a business, the cash method of accounting is not
permissible under the Act. Cameron J. stated at page 1050:
For these reasons I must reach the conclusion that the
"cash receipts and expenditure" method purported to
have been used by the Appellant in this case is a method which is
not permissible under the Act. I say that because of the fact
that it excludes as an item of income all receivables, which in
my opinion form a necessary part of any trader's profit and
loss statement. Such a method is incomplete and misleading and
one which fails entirely to show the true state of a tax
payer's position or to reflect his true profit or loss.
[...]
I am not aware of any subsequent case which has diminished the
effect of Ken Steeves Sales.
There is an underlying assumption in the Income Tax Act
that income from business or property will be determined by the
accrual method of accounting. Many examples support that
underlying assumption. When computing income:
- paragraph 12(1)b) requires receivables to be
included;
- paragraph 18(1)a) permits the deduction of expenses
incurred; and
- paragraph 20(1)l) permits the deduction of a reserve
of a reserve for doubtful debts.
In section 28, there is explicit permission to use the
"cash method" to compute income from farming and
fishing. Without such explicit permission, it appears to me that
farmers and fishermen would be required to use the accrual method
of accounting.
In my opinion, the Appellant has no choice. It must adopt the
accrual method of accounting. It cannot adopt the cash
method.[...]
[15] This decision was confirmed by the
Federal Court of Appeal[3]. The appeal did not deal with this part of the
decision. Furthermore, the Judges of the Federal Court of Appeal
did not see fit to amend this passage. The statements by Mogan J.
thus remain unchanged: the Appellant must use the accrual method.
I can thus not substitute the method adopted by the Appellant for
that used properly by the Minister in producing the Notices of
Assessment.
[16] The Appellant has raised an argument
based on estoppel in order to justify his use of the cash
accounting method. According to the Appellant, the tax
authorities misled him by failing to tell him, when he was
audited in 1985, that he was not to use the cash method. I cannot
endorse this claim. On the one hand, the Appellant did not raise
this argument, either in his Notice of Appeal or in his reply.
Furthermore, the evidence is insufficient to support this
conclusion: the Appellant has submitted no evidence that would
establish that he was in fact audited in 1985. In addition,
furthermore, issue estoppel requires that the intention of the
tax authorities be shown to have misled the Appellant so that he
would continue to use the cash method. No evidence of this has
been submitted to the Court.
[17] With regard to the Appellant's
request that he be authorized to amend his tax returns for the
1991 to 1994 taxation years, I must state that this exceeds my
authority, which is limited to determining the correctness of the
assessments issued which are at issue here. The assessments at
issue in this case relate to the 1995 to 1997 taxation years. I
accordingly have no authority to order that the Appellant be
authorized to amend his income tax returns in respect of the 1991
to 1994 taxation years. If, however, the Appellant wishes to
amend his returns for the 1991 to 1994 taxation years, he is free
to do so, if this is still allowable in terms of the prescribed
time limits.
[18] With regard to the request of the
Appellant to have the documents processed which were not
considered by Mr. East at the time of the audit, I cannot accede
to this request. Subsection 171(1) of the Act allows me to
order that the Appellant's assessments be referred back to
the Minister for review:
The Tax Court of Canada may dispose of an appeal by
a) dismissing it;
or
b) allowing it: and
(i) vacating the assessment,
(ii) varying the assessment,
or
(iii) referring the assessment back to
the Minister for reconsideration and reassessment.
[19] In order to refer the assessment back
to the Minister for review, I must be convinced, on the balance
of probabilities, that the assessment is incorrect. In order to
satisfy the onus of proof incumbent upon him, the Appellant may
submit evidence that was not brought to the attention of the CRA.
This is what the Federal Court of Appeal ruled in Buchanan
v. Canada, No. A-416-01, May 31, 2002, [2002] F.C.J.
No. 838, at paragraph 18:
[...] Proceedings in the Tax Court are not a judicial
review of the correctness or reasonableness of the Minister's
assessment. Rather, the function of the Tax Court is to arrive at
the correct assessment itself (unless it is unable to do so and
considers it necessary to refer the assessment back to the
Minister for reconsideration under subparagraph
171(1)(b)(iii) of the Income Tax Act). The Tax
Court's consideration of the matter will be on the basis of
the evidence adduced in the Tax Court, even if that evidence was
not before the Minister when he made his assessment. See
Johnston v. Minister of National Revenue, [1948] 3 D.T.C.
1182, page 1183, per Rand J. [...]
[20] In the instant case, the evidence
submitted by the Appellant does not support the conclusion that
the assessments issued deserve to be revised. Although the
Appellant has submitted numerous documents, such as invoices,
receipts, account statements, letters, etc., the absence of any
connection between these items of evidence and the
Appellant's arguments make any conclusion favourable to the
Appellant virtually impossible. On the other hand, the auditor,
Mr. East, explained clearly and concisely how he had arrived at
the assessments that are at issue here. I see no flaws in his
procedure. I have advised the Appellant on several occasions that
the onus was on him, and counsel for the Respondent and myself
have given him all the assistance it was in our power to give.
Despite that, I conclude that the Appellant has not satisfied the
onus upon him. The following is a summary of the evidence
submitted by the Appellant.
[21] The Appellant filed, as exhibit A-2,
three photocopies comprising letters sent by Denis Pilon to the
Appellant. Mr. Pilon did not testify at the hearing. In these
letters, Mr. Pilon describes the circumstances surrounding the
negotiation of the sale of the properties located at 53
Matapédia Avenue and at 38-40 Poirier Street.
Mr. Pilon also indicates that he received from the Appellant
shares as an incentive to purchase of one or other of these
properties.
[22] The Appellant has also filed en
liasse, as exhibit A-3, various documents including: the
worksheets of the auditor in respect of the capital losses
claimed by the Appellant in respect of the buildings located at
52 Matapédia Street and at 38-40 Poirier Street, a
statement for the month of September 1996 from "Midland
Walwyn" showing delivery charges of $28.50 in respect of
4,000 shares of Sundust Resources Inc., a statement of account
from "Tascherau & Massicotte" regarding
administration of the monies received from Denis Pilon during the
purchase-sale of the building located at 53 Matapédia
Street, an account statement from "Taschereau &
Massicotte" regarding the administration of money received
from Denis Pilon during the purchase-sale of the property located
38-40 Poirier Street, a photocopy of two cheques issued by
"Taschereau & Massicotte" drawn on a trust account,
one in the amount of $6,000 made out to the order of "Denis
Pilon in Trust and Denis Corriveau" and the other in the
amount of $10,000 to the order of "Matériaux
Hémulat Inc. and Denis Corriveau", a fax comprising a
letter from Bernard Barrette to Patrick Massicotte showing the
amounts due by the Appellant in respect of the property located
at 53 Matapédia Street, a record of adjustments from
"Taschereau & Massicotte" showing the Mr. Pilon
owed $152.33 to the Appellant, and a statement of account from
"Taschereau & Massicotte" indicating fees and
disbursements in the amount of $526.82.
[23] The Appellant has attempted, through
these exhibits, to establish, among other things, the existence
of a pocket-agreement between Mr. Pilon and himself. According to
this pocket-agreement, the property sales would be concluded for
prices lower than those shown in the notarized sales contracts.
As Counsel for the Respondent stated, the Appellant cannot
proceed in this manner with a view to contradicting a notarial
act which makes proof against all persons of the juridical act
which it sets forth.[4] To do so, the Appellant had to proceed by means of
improbation[5],
which was not the case. Furthermore, in the absence of the
consent of the Respondent, the Appellant cannot enter as evidence
letters written by Mr. Pilon when he was not present at the
hearing and thereby hope that these letters will provide evidence
of their content[6]. Since counsel for the Respondent has objected to the
admission of these letters in evidence, they are inadmissible. I
do not admit the claim of the Appellant that the sale of these
two properties occurred at prices other than those shown in the
notarized sales contracts.
[24] As exhibit A-4, the Appellant filed
en liasse the following documents: work sheets of the
auditor with regard to accounting and legal fees, office and
travel expenses claimed by the Appellant, invoices from a law
firm, "Gagné Trudel", and two summaries of sales
contracts, one signed by the witness Pierre Lavallée and
the other signed by one Alain Turgeon, both lawyers. Based on
these worksheets, CRA denied the deduction of these expenses on
the grounds that the Appellant had submitted no proof of payment
of these expenses. The Appellant has submitted no proof of
payment that would refute the claim of CRA.
[25] The Appellant has also tabled (exhibit
A-6) a judgment of the Superior Court, dated June 5, 1996,
ordering orders the defendant, Tony Fiset, to repay to the
Appellant the amount of $37,000, with interest at the legal rate
since the date of service, plus an additional indemnity
stipulated by law and costs. The amount in question was invested
by the Appellant to purchase a property in Haiti, and the
defendant Fiset absconded with the money and did not deliver the
deed of ownership to the Appellant. However, as Mr. East states
in his testimony: "[...] before Canada Customs and Revenue
Agency can allow a business investment loss, Mr. Corriveau will
have to provide proof of the initial outlay of his investment and
then outline the action he took to recover the amount in
question. He will then have to prove that he was the owner of the
investment in question, it is up to him to prove that
aspect."[7] This has not been proved.
[26] Exhibits A-10 and A-11 were entered by
the Appellant without any specific explanations as to their
relevance. They consist of some of the auditor's worksheets.
With regard to exhibit A-12, the Appellant has maintained that
this is an invoice which should not have been considered by the
auditor. First, this invoice is not accompanied by any proof of
payment. Second, counsel for the Respondent objected to the
introduction of this piece of evidence since it is not one of the
items mentioned on the Appellant's list of documents. The
Appellant also tabled a newspaper clipping which indicates a
public notice of sale by auction of one of the Appellant's
properties. This exhibit was given the number A-13. In my
opinion, these exhibits prove nothing.
[27] The Appellant stated that he has at
home many documents illustrating the expenditures he made. These
documents, however, were not admitted as evidence. I refuse to
order that the audit be recommenced from the beginning solely on
the basis of a statement on the part of the Appellant that he has
other invoices at home.
[28] The Appellant also maintained that Mr.
East failed to consider some documents with which the Appellant
had provided him. In support of his claim, the Appellant
explained that Mr. East had given him documents attesting to
numerous expenditures that occurred several months after the end
of the audit. The Appellant concluded that Mr. East had not
considered these documents. In this regard, Mr. East explained
that the documents in question had been given to the Appellant
several months after the audit had been completed because they
had been lost. He did not, moreover, state that he had not
considered these documents. The onus is on the Appellant to
demonstrate that some documents were not considered at the time
of the audit and that this failure to consider them has an impact
on the fairness of the assessments made. This has not been
demonstrated.
[29] The Appellant has also asked that the
expenses incurred for the repair of the building located at 151
6th Street be attributed to this property rather than to the
property at 38-40 Poirier Street, and that the expenses be
described as current expenses. I cannot accede to this request
because the evidence provided by the Appellant is
insufficient.
[30] Mr. East explained that he attributed
these expenses to the property located at 38-40 Poirier Street
because the receipts provided by the Appellant did not indicate
the building for which the materials acquired were destined.
Since the Appellant had carried out major repairs to the property
at 38-40 Poirier Street, Mr. East assumed that the expenses were
attributable to the renovation of this building. Mr. East
accordingly concluded that these were capital expenses and as
such were not deductible. On the day of the hearing, the
Appellant did not demonstrate that the expenses had been
undertaken for the repair of the building located at 151 6th
Street rather than for the renovation of the building at 38-40
Poirier Street. At most, the evidence provided by the Appellant
supports the conclusion that the building located at 151 6th
Street was involved in a fire on two occasions and that the
Appellant had obtained a renovation permit for that building[8]. This seems to be
insufficient to support a conclusion that the Minister erred in
his Notice of Assessment, particularly if one considers that the
Appellant also obtained a renovation permit for the building at
38-40 Poirier Street. Further, I am not convinced that the
Appellant is correct in his claim that the renovation expenses
for the building at 151 6th Street constitute deductible current
expenses.
[31] Lastly, the Appellant wishes to deduct
the broker's fees incurred in the transfer of some of his
shares to Mr. Pilon. The Appellant emphasized that he had been
honest in reporting the capital gain arising out of this transfer
and that it would accordingly be reasonable to allow such a
deduction.
[32] The Appellant is within his rights to
subtract from the proceeds of the disposition of his shares the
amount paid by him to dispose of the said shares. Nonetheless,
the Appellant has not proved that he did in fact incur brokerage
fees. At most, the Appellant has tabled a statement for the month
of September 1996 from "Midland Walwyn", showing
delivery charges of $28.50 in respect of his 4,000 shares of
"Sundust Resources Inc.". Assuming that these are the
brokerage fees to which the Appellant refers, no proof of payment
of these fees has been submitted to the Court. I am accordingly
not able to concur with the Appellant's request in the
absence of evidence.
[33] Subsidiarially, the Appellant asked
that the transfer of his shares be deemed to have occurred for $0
a share in order to eliminate the capital gain. I cannot accede
to this request which, it must be acknowledged, would be the
equivalent of a misrepresentation of the reality.
CONCLUSION
[34] Despite the sympathy which I have for
the Appellant, the appeals are dismissed, with costs.
Signed at Ottawa, Canada, this 16th day of August, 2004.
McArthur J.
Certified true translation
Colette Dupuis-Beaulne
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