Date: 20100322
Docket: T-2255-07
Citation: 2010 FC 326
Toronto, Ontario, March 22,
2010
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
VINCENT
M. FORMOSI
Applicant
and
THE
CANADA REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
Applicant is a Canadian taxpayer. He, as a self-represented litigant, is before
the Court seeking judicial review of a decision of Officials of the Canada
Revenue Agency dated November 23, 2007 in which they declined the Applicant’s request that interest
and penalties imposed on him as a result of delinquent payment of income tax,
be foregone. For the reasons that follow I am dismissing this application with
costs.
[2]
The
review of a decision of this kind in respect of whether interest and penalties
should be waived as provided for under the provisions of Section 220(3.1) of
the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp) as amended, is
judged by the Court on a standard of reasonableness as provided for by the
Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9 and as
applied, for instance, in Lanno v. Canada (Customs and Revenue
Agency),
2005 FCA 153. Reasonableness connotes as stated by the Supreme Court at
paragraph 47 “…a margin of appreciation within the range of acceptable and
rational solutions.”
[3]
The
Court must, therefore, look at the decision under review and determine if it
was “reasonable”. If it was, the application for judicial review must be
dismissed. In the present case the Applicant appears to have been under a misunderstanding
as to appropriate evidence. The Court must conduct a review based on what was
before the decision maker, not on additional evidence and affidavits put before
the Court.
[4]
In
the present situation the record shows that the Applicant has a history of delinquency
in filing tax returns and paying his taxes. In some cases he has filed and paid
promptly, but in many instances he has not. As a result, in 2006, a sum in
excess of six figures was owing. This amount was paid but penalties and
interest remained.
[5]
The
Applicant made a submission listing a number of deaths and illnesses of members
of his immediate family as well as instances of personal illness. However on
some occasions those events did not match with the years of delinquency and in
all instances the Applicant did not clearly show a connection between those
events and the delinquencies. This failure to connect was a basis for the
Respondent refusing to waive penalties and interest as was the history of the
Applicant of several delinquencies.
[6]
Admittedly,
on occasion and more recently, the Applicant has been better about prompt
reporting and payment. However there is no doubt that there have been far too
many occasions of delinquency. The Respondent’s decision was within the
acceptable range of reasonableness.
[7]
The
Applicant also argues that the decision was made by one Officer of the
Respondent Agency and reviewed and concurred by another, thus creating, in
effect, an institutional bias. I do not accept this argument. The Income Tax
Act gives to the Minister through the Minister’s Officials the duty to make
such a decision and they have done so.
[8]
The
Application is dismissed. The Respondent, being successful, is entitled to
costs to be fixed at the Column III level.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1.
The
application is dismissed;
2.
The
Respondent is entitled to costs to be taxed at the Column III level.
“Roger T. Hughes”
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