Date: 20010327
Docket: 2000-4221-IT-I
BETWEEN:
WEISZ, ROCCHI & SCHOLES,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bowman, A.C.J.
[1]
In this appeal the law firm of Weisz Rocchi & Scholes
challenges an assessment whereby the Minister of National Revenue
has imposed a penalty of $745.29 under subsection 227(9) of
the Income Tax Act based upon an alleged late remittance
of payroll source deductions in the amount of $7,952.90.
[2]
Subsection 227(9) of the Act reads:
Subject to subsection (9.5), every person who in a calendar year
has failed to remit or pay as and when required by this Act or a
regulation an amount deducted or withheld as required by this Act
or a regulation or an amount of tax that the person is, by
section 116 or by a regulation made under subsection 215(4),
required to pay is liable to a penalty of
(a)
10% of that amount; or
(b)
where at the time of the failure a penalty under this subsection
was payable by the person in respect of an amount that should
have been remitted or paid during the year and the failure was
made knowingly or under circumstances amounting to gross
negligence, 20% of that amount.
[3]
This obligation to deduct and withhold prescribed amounts from
salary, wages or remuneration and to remit such amounts to the
Receiver General at prescribed times is found in
subsection 153(1) of the Act and section 108 of
the Regulations. The appellant is not a prescribed person for the
purposes of section 153 and therefore was not required to
make the remittance to a financial institution.
[4]
There is no need to reproduce section 153 of the Act
or section 108 of the Regulations. It is sufficient to say
that the due date for making the November 1999 remittance was
December 15, 1999.
[5]
Subsection 248(7) reads:
For the purposes of this Act,
(a)
anything (other than a remittance or payment described in
paragraph (b)) sent by first class mail or its equivalent
shall be deemed to have been received by the person to whom it
was sent on the day it was mailed; and
(b)
the remittance or payment of an amount
(i)
deducted or withheld, or
(ii)
payable by a corporation,
as required by this Act or a regulation shall be deemed to have
been made on the day on which it is received by the Receiver
General.
[6]
The remittance of payroll deductions with which we are concerned
here falls under paragraph (b) of that provision.
[7]
It is admitted that the remittance was mailed to the CCRA on
December 8, 1999 in the window envelope together with a
self-addressed remittance stub provided by the CCRA. The address
was
Revenue Canada
875 Heron Rd
Ottawa ON K1A 1B1
[8]
This is the practice that had been followed for 20 years by
the appellant and this is the first time a penalty has been
imposed.
[9]
The respondent alleges that the payment was not received until
December 20, 1999, five days after the date required by
section 108 of the Regulations.
[10] The only
evidence I have is the deposit stamp on the back of the cheque
indicating that the cheque was deposited to the government's
bank account on December 21, 1999.
[11] The
respondent has pleaded that the Minister made an assumption of
fact that
the Appellant submitted the source deductions withheld in
respect of November 1999 late on December 21, 1999.
This was corrected at trial to December 20.
[12] In fact
the payment was submitted on December 8, 1999. I presume
that the wording in paragraph 248(7)(b) is the basis
of the allegation.
[13] The
pleading of such an assumption is in my view insufficient to
justify the imposition of the penalty. I say this for several
reasons. In the first place there is no evidence before me of the
date of receipt. The cheque and the remittance form have no stamp
on them indicating when they were received. Ms. Fletcher, an
employee of CCRA in the Hamilton District office, testified that
the practice in the Hamilton office was to date stamp material
when it was received. I accept what she says with respect to the
practice in Hamilton, but this tells me nothing about the
practice in Ottawa.
[14] Second,
the onus is upon the respondent to justify the penalty. Ever
since the case of Johnston v. Canada, [1948]
S.C.R. 486, the practice has been to plead
"assumptions" upon which the Minister based his
assessment of tax. The premise upon which Rand J. based his
well-known observation goes back to well before Johnston,
to Anderson Logging Co. v. British Columbia, [1925]
S.C.R. 45, where the onus was put on a taxpayer challenging
an assessment because the taxpayer is presumed to have a much
better knowledge of the facts than the Minister.
[15] If that
is the justification for putting the onus upon the taxpayer in
income tax appeals, where the amount of tax is in issue, it is
not a justification where the Minister imposes a penalty.
[16] It is
contrary to the most fundamental precepts of the law and of
ordinary procedural fairness that a government should be entitled
to impose a penalty and then sit back and say to a subject:
"Show why you should not be penalized". It is
particularly indefensible where the facts upon which the penalty
is imposed — in this case the alleged late receipt of a
remittance — are entirely within the Minister's
possession. If the onus is cast upon the taxpayer to prove timely
receipt how could he or she ever satisfy it?
[17] The
Act contains a large array of evidentiary provisions, of
which subsection 248(7) is only one example, which stack the
cards unfairly in favour of the Crown. For example in The
Queen v. Schafer, 2000 DTC 6542, the Federal Court
of Appeal held that a taxpayer's time for objecting to an
assessment started to run when the notice of assessment was sent,
even though the taxpayer did not receive the notice and knew
nothing about it. I see no reason for adding to an already
onerous evidentiary régime.
[18] Here the
Crown has simply not proved the late receipt of the
remittance.
[19] In
897366 Ontario Ltd. v. R., [2000] G.S.T.C. 13, I held
that in GST cases the onus was on the Crown to establish the
ingredients justifying the penalty even though unlike the
Income Tax Act the onus is not specifically imposed on the
Crown. At pages 13-5 and 13-6 I said:
13
The penalty of $12,585.98 is imposed under section 285. This
requires that an omission or false statement in a return be made
knowingly or in circumstances amounting to gross negligence. The
onus is upon the Crown to establish these elements and this the
Crown has failed completely to do. Subsection 163(3) of the
Income Tax Act specifically places the burden of proof on
the Crown in appeals from penalties imposed under subsection
163(2). There is no provision in the Excise Tax Act that
corresponds to subsection 163(3) with respect to section 285
penalties, although the wording in section 285 is virtually
identical to that in subsection 163(2). It would be a
remarkable result if the onus of proof lay on the Crown in one
case and on the taxpayers in another. In A. Pashovitz v.
Minister of National Revenue, [1961] C.T.C. 288, 61 D.T.C.
1167, (Can.Ex.Ct.) Thurlow J. held that in an appeal under old
section 51A which imposed a penalty for wilfully ... evading
or attempting to evade tax payable..., since the penalty is
"civil", the onus lay on the taxpayer. Such a
conclusion is surprising, even by 1961 standards. Thurlow
J.'s conclusion is based solely on the observations of Rand
J. and Kellock J. in Johnston v. Minister of National
Revenue, [1948] S.C.R. 486 (S.C.C.). That case is, of course,
the leading case on onus of proof in appeals from assessments of
tax. It is silent on the onus where penalties are involved.
Thurlow J. observed the proceedings relating to penalty are of a
civil nature, but he could "see no sufficient reason for
making any distinction as to the onus of proof..."
[between appeals from assessments of tax and assessment of
penalties.] Well, I can see plenty of reasons for making such a
distinction. If someone not only accuses me of the reprehensible
and indeed criminal act of tax evasion but also seeks to punish
me for it I would expect my accuser to substantiate the
allegation regardless of how many mollifying epithets, such as
"civil" or "administrative" are used to
cushion the blow. A punishment for dishonest or reckless
behaviour is still a punishment. The same is true of a penalty
imposed to punish conduct described in section 285 of the
Excise Tax Act. It appears axiomatic that where a
government imposes a penalty upon a subject for conduct in which
a necessary ingredient is mens rea of intent or
recklessness, it is incumbent upon that government to justify its
action.
14
I am fortified in my view that in an appeal from a penalty under
section 285, the onus is on the Minister to establish the
elements justifying the penalty by a decision of Rip J. in
Alex Excavating Inc. v. R., [1995] G.S.T.C. 57 (T.C.C.) at
page 57-13:
The question whether the Crown had the burden of establishing
the facts justifying the assessment of the s. 285 penalty was not
raised at trial. Counsel for the respondent produced Mrs. Dickson
to give evidence establishing the facts justifying the penalty.
Counsel was correct in doing so.
Both the Excise Tax Act and the Income Tax Act
were enacted to raise revenue for the Government of Canada. They
are not strictly speaking different statutes in pari
materia since the taxes are different. However, s. 285 of the
Act and subsec. 163(2) of the ITA both touch on the same
subject, that is, penalizing a person who knowingly, or under
circumstances amounting to gross negligence, in the carrying out
of a statutory duty, makes a false statement in a return from
which a tax is calculated. The language of s. 285 and subsec.
163(2) of the ITA are similar and they target the same mischief.
I cannot imagine that in this situation Parliament intended that
the Minister have the burden of establishing the facts justifying
a penalty assessed by the Income Tax Act and shift the
burden of establishing the facts vacating the penalty on the
taxpayer in the Excise Tax Act. It is implicit in s. 285
that the burden of establishing the facts justifying the
assessment of the penalty issued pursuant to that section is on
the Minister.
(footnotes omitted)
15
I am in complete and respectful agreement with the observations
of Rip J.
16
Further support for this position is found in the statement of
Robertson J.A. in Consolidated Canadian Contractors Inc. v.
R., (F.C.A.), [1998] G.S.T.C. 91 (Fed.C.A.) at page
91-16 where he said:
[50] In my
view, the Minister's argument is really two-sided. First, it
suggests that the aforementioned provisions demonstrate
Parliament's intention to establish absolute liability with
respect to the penalty provision in s. 280. This is a reasonable
inference which assists the Minister in discharging his onus to
rebut the presumption in favour of strict liability: see
Nassau Walnut Investments, supra, at p.299. But it is not
dispositive of the issue. I say this because ss. 285, 323 and 327
are distinguishable on the basis that they place a duty on the
Minister to establish that a registrant's conduct falls
within those provisions. By contrast, an implied due
diligence defence with respect to s. 280 places the onus on the
registrant to establish that he or she had exercised reasonable
care in remitting the correct amount of GST. With respect to s.
323, it does not necessarily follow that because an Act expressly
provides for a defence in one instance, it is not available in
others: see Nassau Walnut, supra.
(emphasis added)
[20] Here we
are not dealing with reprehensible conduct but we are dealing
with the imposition of a punishment. Nonetheless the principle is
the same. If the state seeks to punish a subject the state should
justify its action.
[21] I need
not deal with the point that in cases of late remittance there
may be available a defence of due diligence as in Pillar
Oilfield Projects Ltd. v. Canada, [1993] G.S.T.C. 49, as
confirmed in the Federal Court of Appeal in Consolidated Cdn.
Contractors v. Canada [1998] G.S.T.C. 91.
[22] Whether
that defence is available in cases of late remittance is a matter
for another day. Certainly had it been necessary for me to
consider the point I would have found due diligence. Here,
however, it is sufficient for me to base my decision on the
failure of the Crown to establish late receipt.
[23] The
appeal is allowed with costs and the assessment of the penalty is
vacated.
Signed at Ottawa, Canada, this 27th day of March 2001.
"D.G.H. Bowman"
A.C.J.