Date:
20130531
Docket:
T-1042-12
Citation:
2013 FC 588
Ottawa, Ontario,
May 31, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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HOWARD BILLER
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER
AND ORDER
[1]
This
is an application for judicial review challenging a decision by the Taxpayer
Relief Center of Expertise Appeals Branch under the direction of the Minister
of National Revenue [the Minister] to not use its discretion to grant Mr.
Biller’s [the Applicant] relief under subsection 281.1 of the Excise Tax Act,
RSC 1985, c E-15 [ETA]. The Applicant is seeking cancellation of
penalties and interests levied by Canada Revenue Agency [CRA] for the taxation
periods ending December 31, 2004, December 31, 2005, December 31, 2006 and
December 31, 2007 [the Periods]. The Applicant is a self-represented litigant.
I. Background
[2]
The
Applicant has been a Distributor for Immunotec, a Quebec-based, Multi-Level
Marketing Company distributing health supplements, for over ten (10) years.
[3]
The
Applicant did not file Goods and Services returns of income for the Periods. As
such, the Minister assessed the Applicant interest and late filing penalties on
his failure to file tax returns on time as required by the ETA.
[4]
On
January 15, 2009, the Applicant applied to the Minister to waive the late
filing penalties and interest assessed to him for the Periods, claiming
extraordinary circumstance as the basis of his relief.
[5]
On
March 4, 2010, the Minister issued a decision declining to use its discretion
to waive the penalties and interest owed by the Applicant under subsection
281.1 of the ETA.
II. Issues
[6]
Did
the Board err in denying the Applicant’s penalty and interest relief?
III. Standard of review
[7]
The
appropriate standard of review is the standard of reasonableness (Canada
Revenue Agency v Telfer, 2009 FCA 23 at para 24; see also Holmes v Canada (Attorney General), 2010 FC 809).
[8]
The
Court should only intervene to review the decision if it does not fall “within
a range of possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47). For a
decision to be reasonable, there must be justification, transparency and
intelligibility within the decision making process.
IV. Analysis
[9]
A
useful summary of legislative framework of the taxpayer relief provisions was
provided by Justice Michel Beaudry in Knecht v Canada (Attorney General),
2009 FC 940:
11 The Taxpayer Relief Provisions of the Income
Tax Act, 1985, c. 1 (5th Suppl.) [subsection 220(3.1) of the Income Tax Act and
section 281.1 of the ETA] gives Canada Revenue Agency (CRA) the discretion to
waive or cancel all or part of properly assessed penalties and interests.
Discretion will generally be exercised if the taxpayer has not complied with
the Act due to circumstances beyond his or her control, financial hardship or
due to actions of the CRA. In addition, prior to making a decision with regard
to the cancellation of penalties or interest, the Agency will review the
taxpayer's situation to determine if a reasonable standard of care has been
exercised in the administration of his or her affairs.
12 The decision making process in respect of a
request by a taxpayer for cancellation or waiver of interest and/or penalties
(a Fairness Request) pursuant to section 281.1 of the Act begins when a CRA
Fairness Officer reviews the taxpayer's first level request. The Fairness
Officer prepares a report and makes a recommendation on the taxpayer's First Level
Request. Where the amount in issue exceeds $5,000, the First Level Request is
reviewed by a committee of three Team Leaders (First Level Committee). If the
taxpayer requests a review of the First Level Request (a Second Level Request),
a report is prepared by a CRA Officer who was not involved in the First Level
Request for review by a committee which consists of the Assistant Director of
the Revenue Collections and Client Services Division, the Assistant Director of
the Audit Division and the Director of the South Interior Tax Services office
(Second Level Committee). The Second Level Committee reviews all the material
and then makes a decision.
13 In deciding whether to grant a taxpayer
relief in response to a Fairness Request, the factors considered by the
Minister generally include the following:
(a) the taxpayer's history of compliance with
GST obligations;
(b) whether or not the taxpayer
has knowingly allowed a balance of GST payable to exist upon which arrears
interest has accrued;
(c) whether or not the taxpayer
has exercised a reasonable amount of care and has not been negligent or
careless in conducting his or her affairs under the self-assessment system;
(d) whether or not the taxpayer
has acted quickly to remedy any delay or omission attributable to the taxpayer;
and
(e) whether the taxpayer is
subject to hardship which affects his or her ability to pay the assessed
amounts.
(see
paragraph 22 of Information Circular IC07-1, Taxpayer Relief Provisions)
[10]
Justice
Simon Noël’s decision in Quastel v Canada Revenue Agency, 2011 FC 143 is
also instructive in this case:
21 As instructed by the Supreme Court in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 (CanLII), 2009 SCC 12, at
para 46, “More generally, it is clear from s. 18.1(4)(d) that Parliament
intended administrative fact finding to command a high degree of deference.
This is quite consistent with Dunsmuir. It provides legislative precision to
the reasonableness standard of review of factual issues in cases falling under
the Federal Courts Act.” Hence, as it is the exercise of discretion that is
contested, the applicable standard of review is that of reasonableness, as is
confirmed by the relevant case law (Canada Revenue Agency v Telfer, 2009 FCA 23
(CanLII), 2009 FCA 23; Spence v Canada Revenue Agency, 2010 FC 52 (CanLII),
2010 FC 52; Northview Apartments Ltd v Canada (Attorney General), 2009 FC 74
(CanLII), 2009 FC 74; Cayer v Canada Revenue Agency, 2009 FC 1195 (CanLII),
2009 FC 1195).
22 The Applicants were not represented before the
Court thus the preceding observations in regards to the standard of review may
seem technical in nature. Judicial review is different from an appeal of a
decision, especially when the standard of review is that of reasonableness. The
Court is to ask itself if the impugned decision is part of the reasonable
outcomes defensible in fact and law, indicating that there is indeed some
leeway in administrative decision-making (Dunsmuir v New Brunswick, 2008 SCC 9
(CanLII), 2008 SCC 9, at para 47). Hence, the Court’s power does not extend to
a reassessment of the evidence or to substituting its decision for that of CRA.
At the stage of judicial review, the outcomes are limited: either the matter is
sent back for redetermination or the decision is accepted as “reasonable” or
“correct”, according to the applicable standard of review.
[11]
The
Minister has issued guidelines setting out a non-exhaustive list of factors to
be considered in exercising his discretion to waive penalties and interest,
including: (1) extraordinary circumstances, (2) actions of the CRA; and (3)
inability to pay or financial hardship.
[12]
In
considering these factors, it is important to note that any applicant is
responsible to file his or her return on time, and that any errors attributable
to third parties are not considered extraordinary circumstances (Babin v
Canada (Customs and Revenue Agency), 2005 FC 972 at paras 19-20; Quastel
v Canada (Revenue Agency), 2011 FC 143; Boonstra v Canada (Attorney
General), 2006 FC 1196 at paras 17, 22).
[13]
While
I have some sympathy for Mr. Biller’s confusion concerning his duty to remit
GST for his services rendered to Immunotec, upon which commissions were paid to
him, if was, nevertheless, his responsibility to ensure, in some way, that he
had proper remittances made and received the necessary advice from his
accountant or otherwise to ensure compliance with his GST payment obligations.
While Mr. Biller’s accountant and perhaps Immunotec may have failed to provide
adequate or proper advice to Mr. Biller, these issues are separate from CRA
considerations. CRA considered the relevant facts, and acted reasonably.
Therefore this application is dismissed.
[14]
The
facts of this case, however, do not justify that costs should be against the
Applicant. No costs shall be awarded.
ORDER
THIS
COURT ORDERS that:
1. The application for
judicial review is dismissed;
2. No costs are awarded.
"Michael D.
Manson"
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