Docket: 2012-1331(IT)I
BETWEEN:
MIRON
GORFAIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
____________________________________________________________________
Appeal heard on April 10, 2013 at Montréal,
Québec
Before: The Honourable Justice Patrick
Boyle
Appearances:
|
For the Appellant:
|
The Appellant himself
|
|
Agent for the Respondent:
|
Julien Wohlhuter (Student‑At‑Law)
|
____________________________________________________________________
JUDGMENT
The appeal from the reassessment made under
the Income Tax Act with respect to the Appellant’s 2009 taxation year is
allowed, with costs, and the matter is referred back to the Minister of
National Revenue for reconsideration and reassessment in accordance with the
attached reasons delivered orally at the hearing.
Signed at Ottawa, Canada this 1st
day of May 2013.
"Patrick Boyle"
Docket: 2012-1331(IT)I
BETWEEN:
miron gorfain,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
EDITED VERSION OF TRANSCRIPT
OF ORAL REASONS FOR JUDGMENT
Let the attached edited transcript of the Reasons for
Judgment delivered orally from the Bench at Montréal, Québec on April 10, 2013 be filed. I have edited the transcript (certified by the Court
Reporter) for style, clarity and to make minor corrections only. I did not make
any substantive changes.
Signed at Ottawa, Canada this 1st day of May 2013.
"Patrick Boyle"
Citation: 2013 TCC 136
Date: 20130501
Docket: 2012-1331(IT)I
BETWEEN:
MIRON GORFAIN,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
(Appeal heard and decision rendered orally from the
Bench
on April 10, 2013 at Montréal, Québec)
Boyle J.
[1]
These are my reasons in
the informal appeal of Mr. Gorfain’s 2009 year who has represented himself this
morning, in Montréal.
[2]
In fairness to Mr.
Gorfain, I should begin by saying I'm allowing the appeal and these are my reasons
for allowing the appeal. Hopefully, that will make things easier to follow.
[3]
Following a payroll
audit of a group of related companies involved in the packaging and distribution
of newspaper flyers in Montréal, an amount of approximately $28,000 was added
to Mr. Gorfain’s income by the CRA. Mr. Gorfain’s name
(misspelled) and address was typed on a list of subcontractors prepared by the
audited companies for purposes of the CRA audit.
[4]
Apart from confirming
that the taxpayer lived at the address provided, CRA did no other verification
that the taxpayer had worked for or received any amounts from the audited group
of companies.
[5]
Mr. Gorfain speaks
Russian and needed to participate and testify through an interpreter.
[6]
He has maintained
consistently in his objection, in his Notice of Appeal and in his sworn
testimony that he has never heard of any of these companies or their principals
and shareholders, that he never worked for any of them, and that he never
received any money from any of them.
[7]
Mr. Gorfain’s position
is plausible prima facie evidence contrary to the CRA’s assessing
position. Therefore, it was incumbent upon the Respondent to provide evidence
to support its position.
[8]
The Government’s
position has not been upheld with credible evidence and I am allowing Mr.
Gorfain’s appeal. It is simply insufficient to tax a person solely because
another person under audit points to them and provides their name and address. Names and addresses are readily available publicly and the companies
could just as easily have given CRA almost any Canadian’s name, this would
include mine.
[9]
No reconciliation of
the taxpayer’s banking records was conducted and no net worth assessment or
similar verification of the taxpayer was completed.
[10]
The audited companies
did not provide CRA with social insurance numbers or with any further evidence
of the amounts they said they gave to those named on the list. That is clearly
insufficient.
[11]
In addition to the
testimony of the CRA payroll auditor, the Crown called two former accountants
to the group of companies and one principal of two of the audited companies.
[12]
One of the accountants
simply passed on to CRA the list of persons and amounts prepared by one of the
principals of at least one of the companies in the group. That did little to
supplement the testimony of the CRA auditor and the introduction of the list. This
accountant recognized only one name on the list, not the taxpayer’s. He was
only briefly retained for purposes of the audit and did not confirm any
information on the list against any records of the companies. His testimony
doesn’t help place Mr. Gorfain working for or receiving money from the
companies.
[13]
The other accountant
acted for the audited companies prior to the audit. He was also the accountant
used by Mr. Gorfain to prepare his taxes. The companies switched accountants
once the audit commenced.
[14]
This accountant
continued to act for Mr. Gorfain in challenging CRA’s assessment through the
objection process. He did not tell Mr. Gorfain he also acted for the group of
companies and one of its principals, even though he wrote the English version
of the objection in which Mr. Gorfain states he doesn’t even know how to
contact these companies.
[15]
The principal of one
company and shareholder of another testified that Mr. Gorfain was hired by her
as a driver for that company. She said she hired him based upon a referral from
someone whom she can no longer recall.
[16]
She testified that the
company she was president of and which hired Mr. Gorfain did not pay Mr.
Gorfain. She suggested that perhaps one of the other companies in the group
might have paid him, but she stated she did not know.
[17]
In short, it is unfortunately
entirely possible that Mr. Gorfain did work for and got paid by these
companies. However, the evidence of that, such as it is, falls very short of
allowing me to conclude that, on a balance of probabilities, he did.
Boyle J.
CITATION: 2013 TCC 136
COURT FILE NO.: 2012-1331(IT)I
STYLE OF CAUSE: MIRON GORFAIN v. HER
MAJESTY THE QUEEN
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: April 10, 2013
REASONS FOR JUDGMENT BY: The
Honourable Justice Patrick Boyle
DATE OF JUDGMENT: May 1, 2013
DATE OF ORAL
REASONS
FOR JUDGMENT: April
10, 2013
APPEARANCES:
|
For the
Appellant:
|
The Appellant himself
|
|
Agent for the Respondent:
|
Julien Wohlhuter (Student-At-Law)
|
COUNSEL OF RECORD:
For the Appellant: N/A
Name:
Firm:
For the Respondent: Myles J. Kirvan
Deputy
Attorney General of Canada
Ottawa,
Canada
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