Date: 20090513
Docket: T-773-09
Citation: 2009 FC 499
Ottawa,
Ontario, May 13, 2009
PRESENT:
The Honourable Mr.
Justice Shore
IN THE MATTER OF the Income Tax Act,
-and-
IN
THE MATTER OF
assessments by the Minister of National Revenue under the Income Tax Act;
AGAINST:
Denise
Cormier-Imbeault
509, rue Principale
Beresford, New Brunswick E8K 1Y1
Respondent
REASONS FOR ORDER AND ORDER
I. Introduction
[1]
Subsection
225.2(2) of the Income Tax Act (hereafter the “ITA”) provides the
following:
|
Authorization
to proceed forthwith
225.2(2)
Notwithstanding section 225.1, where, on ex parte application by the
Minister, a judge is satisfied that there are reasonable grounds to believe
that the collection of all or any part of an amount assessed in respect of a
taxpayer would be jeopardized by a delay in the collection of that amount,
the judge shall, on such terms as the judge considers reasonable in the
circumstances, authorize the Minister to take forthwith any of the actions
described in paragraphs 225.1(1)(a) to 225.1(1)(g) with respect to the amount
|
Recouvrement
compromis
225.2
(2) Malgré l'article 225.1, sur requête ex parte du ministre,
le juge saisi autorise le ministre à prendre immédiatement des mesures visées
aux alinéas 225.1(1)a) à g) à l'égard du montant d'une cotisation établie
relativement à un contribuable, aux conditions qu'il estime raisonnables dans
les circonstances, s'il est convaincu qu'il existe des motifs raisonnables de
croire que l'octroi à ce contribuable d'un délai pour payer le montant
compromettrait le recouvrement de tout ou partie de ce montant
|
(Subsection 225.2(2) of the Income Tax
Act, R.S.C. (1985), c. 1 (5th Supp.), Tab D of the motion record)
[2]
In
Danielson v. Canada, the Federal Court
defined the test to be applied when issuing an authorization under subsection
225.2(2) of the ITA as follows:
(…) The test of “whether it may
reasonably be considered” is susceptible of being reasonably translated into
the test of whether the evidence on balance of probability is sufficient to
lead to the conclusion that it is more likely than not that collection would be
jeopardised by delay.
(Danielson v. Deputy Attorney
General of Canada and Minister of National Revenue, 7 F.T.R. (1986),
42, page 43, paragraph 7)
[3]
The
Federal Court of Appeal clarified this test in Golbeck:
(…) The question was whether, on the
basis of the material put before the Court, it appeared that the Minister had
reasonable grounds for believing that the taxpayer would waste, liquidate or
otherwise transfer his assets so as to become less able to pay the amount
assessed and thereby jeopardizing the Minister’s debt.
(The
Queen v. Golbeck et al., 90 D.T.C. 6575, page 6576)
[4]
Subsequent
decisions by the Federal Court applied the test developed in Danielson and
Golbeck despite the amendment made in 1988 to subsection 225.2(2) of the
ITA (Minister of National Revenue v. Services M.L. Marengère,
2000 D.T.C. 6032).
[5]
In
514659 B.C. Ltd., the Federal Court clarified the burden of proof that
must be met:
I interpret the words “reasonable grounds to believe” to mean a
standard of proof that “while falling short of a balance of probabilities,
nevertheless connotes a bona fide belief in a serious possibility based on
credible evidence” (see para. 24 in The Minister of Citizenship and Immigration
v. Qu, 2001 FCA 399 (CanLII), [2002] 3 F.C. 3
(C.A.)).
(Minister of National Revenue v. 514659
B.C. Ltd., 2003 D.T.C. 5150)
[6]
In
other words, the Court issues an authorization on the basis of evidence
demonstrating a bona fide belief based on credible evidence in a serious
possibility that the granting of a delay to the taxpayer would jeopardize the
collection of the debt, which is a lesser burden of proof than that of the balance
of probabilities.
[7]
In
this regard, the case law has determined that the presence of one or more of
the following factors can justify the issuance of an authorization under
subsection 225.2(2) of the ITA:
a) there are
reasonable grounds to believe that the taxpayer has acted fraudulently;
b) the taxpayer has
proceeded to liquidate or transfer his or her assets;
c) the taxpayer is
evading his or her tax liabilities;
d) the taxpayer has
assets that could potentially lessen in value over time, deteriorate or perish;
e) the
amount of the debt in relation to income and expenses.
II. Analysis
[8]
For
the following reasons, it is reasonable to believe in this case that the
collection of all or any part of the total amount assessed would be jeopardized
by granting the respondent a delay to pay her debt arising from the two notices
of assessment made on May 13, 2009, before an order is issued:
a) Ms. Denise
Cormier-Imbeault (hereafter “Ms. Imbeault”) owes the Agency a tax debt of $406,532.70;
b) Ms. Imbeault’s
only assets known to the Agency having a realizable value are the amounts held
in a bank account totalling $580,859.76 as at March 24, 2009, and half of the
undivided ownership of the residence at 509, rue Principale, assessed at
$54,400.00;
c) The amount of
$580,859.76 seems to be a realizable asset that is essential to the payment of Ms.
Imbeault’s tax debt;
d) On March 24,
2009, Ms. Noëlla Cormier, an officer of the Caisse populaire de Beresford,
mentioned during a phone interview that the money placed in the bank account
could be withdrawn at any time;
e) In fact, in
the past, there have been many withdrawals made as shown in the following table:
|
Withdrawals
made from account 5902 since January 1, 1999
|
|
Dates
|
Withdrawals
|
|
February 9, 1999
|
$7,200.00
|
|
August 31, 1999
|
$300.00
|
|
December 13, 1999
|
$3,200.00
|
|
December 17, 1999
|
$1,500.00
|
|
December 24, 1999
|
$400.00
|
|
December 30, 1999
|
$5,000.00
|
|
January 4, 2000
|
$3,300.00
|
|
October 31, 2000
|
$15,000.00
|
|
August 31, 2001
|
$20,000.00
|
|
TOTAL
|
$55,900.00
|
f)
At
this time, according to the Caisse, Ms. or Mr. Imbeault can at any moment withdraw
all or part of this amount;
g) In fact, according
to the Caisse, even if the amount consists of term deposits, Ms. or Mr. Imbeault
can withdraw the amount, but they would incur penalties on the income from the interest
generated on the capital;
h) Mr. Imbeault’s
previous conduct indicates that he is not trustworthy:
1) he pleaded
guilty to offences of wilfully evading or attempting to evade payment of a tax
established under the ITA in accordance with paragraph 239(1)(d) of the
ITA and of wilfully evading or attempting to evade payment or remittance of the
tax (HST) that he should have paid to Her Majesty under paragraph 327(1)(c)
of the ETA;
2) he
transferred his half of the undivided ownership to his wife upon learning that
the Agency was in a position to undertake collection measures;
3) he always
hid the existence of the bank account and the amount of $580,859.76 therein
from the Agency;
i)
It
is urgent and imperative that the Agency be in a position to seize the bank
account as Mr. Imbeault knows that the Agency was aware of the existence of the
bank account and the amount of money therein;
III. Conclusion
[9]
For
these reasons, the Agency is authorized to take forthwith any or all of the
actions described in paragraphs 225.1(1)(a) to (g) of the ITA in
order to collect or guarantee payment of the amounts owed by the respondent since
there are reasonable grounds for believing that the respondent will waste, liquidate
or otherwise transfer her assets so as to become less able to pay the total amount
assessed and thereby jeopardizing the Agency’s debt.
[10]
A
period of seventy-two (72) hours is granted before the officials of this Court’s
registry serve the order to be made on the respondent.
ORDER
THE COURT ORDERS:
1. the moving party to take forthwith
any or all of the actions described in paragraphs 225.1(1)(a) to (g)
of the ITA in order to collect or guarantee payment of the amounts owed by the
respondent further to the two (2) notices of assessment made on May 13, 2009,
amounting to a total of $406,532.70;
2. the moving party to serve any proceeding
on the respondent, in the event that it cannot be done personally, by means of a
sealed envelope, addressed to her attention, to be deposited in the mailbox of
the respondent’s house located at 509, rue Principale in Beresford, in the province
of New Brunswick;
3. the officials of this Court’s
registry not to serve this order on the respondent further to the obligation provided
for in rule 395 of the Federal Courts Rules before the expiry of the period
of seventy-two (72) hours from the issuance of the order;
4. the moving party to serve the
notice of assessment made on May 13, 2009, on the respondent at the same time
as the order to be issued and in the above-mentioned manner, in accordance with
subsection 225.2(3) of the ITA;
WITH COSTS.
“Michel M.J. Shore”
Certified
true translation
Janine
Anderson, Translator
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