Docket: T-730-14
Citation:
2014 FC 934
Vancouver, British Columbia, October 1, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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YUET YI FUNG
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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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JUDGMENT AND REASONS
(Reasons
delivered orally in Vancouver on October 1, 2014)
[1]
Yuet Yi Fung seeks judicial review of a
second-level decision of the Canada Revenue Agency. In that decision, a
Minister’s Delegate refused to grant relief to Ms. Fung from penalties and
interest assessed as a result of her failure to file a T-1135 Foreign Income
Verification Statement with respect to her 2011 taxation year by the June 15,
2012 deadline.
[2]
By way of background, having failed to file the
T-1135 return by the deadline, Ms. Fung was assessed a late-filing penalty of
$2,500, and arrears interest of $106.82. She paid the monies owing on April 23,
2013, but, in the meantime, she sought relief under the “tax fairness” provisions
contained in subsection 220(3.1) of the Income Tax Act.
[3]
In her first-level submissions, Ms. Fung
asserted that she was pregnant in 2011, and that her daughter was born earlier
than expected. In her request for tax relief, Ms. Fung stated that because she
had had to take care of a premature baby and her four-year-old child, it was
very difficult for her to have what she described as “focused time” to organize
her income tax receipts, with the result that she was unable to file for the
2011 taxation year until October of 2012. Ms. Fung also stated that she was
unaware that she had to file a T-1135 form by the June 15 deadline, even
if she did not owe any tax for the 2011 taxation year.
[4]
Ms. Fung’s request for relief was rejected at
the first level, with the decision-maker noting that Ms. Fung’s baby was born
in August of 2011. The CRA officer was of the view that if Ms. Fung was
unable to manage her tax obligations, it was her responsibility to engage the services
of a tax professional to ensure that her tax returns were filed in a timely
manner. Because the taxation officer was not satisfied that Ms. Fung had
established the existence of circumstances beyond her control, her
first-level request for relief was denied.
[5]
Ms. Fung then took her request to the second
level. The Minister’s Delegate making the decision at the second level noted
that the taxpayer relief provisions of the Income Tax Act provide the
CRA with “the discretion to cancel all or a portion of
interests or penalties owing, where such penalties or interest were incurred as
a result of circumstances beyond the taxpayer’s control”. In this case,
the Minister’s Delegate noted that Ms. Fung’s baby was born 10 months before
the June 15, 2012 filing deadline.
[6]
While accepting that “difficulties are sometimes
involved”, the Minister’s Delegate concluded that Ms. Fung was ultimately
responsible for filing her tax returns by the filing deadline. Because the
Minister’s Delegate was not satisfied that Ms. Fung had established the
existence of circumstances beyond her control, her request for relief was once
again refused. It is this decision that is the subject of Ms. Fung’s
application for judicial review.
[7]
On an application such as this, it is not my
role to re-evaluate Ms. Fung’s request for relief and decide whether I would
come to a different decision than did the Minister’s Delegate. I can only
intervene in the decision if Ms. Fung can persuade me that the second-level
decision was unreasonable in that it lacked justification, transparency or
intelligibility, or that the outcome was beyond the range of possible, acceptable
outcomes that are defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9 at para.
47, [2008] 1 S.C.R. 190.
[8]
Unfortunately, Ms. Fung has not been able to persuade
me that the Minister’s Delegate’s decision was unreasonable. The Minister’s Delegate
considered all of the arguments that had been put forward by Ms. Fung in
support of her request for relief, and explained why these arguments were not
accepted. There was nothing unreasonable about the Minister’s Delegate’s
analysis.
[9]
Ms. Fung says that she was unaware that she had
to file her T-1135 return by the statutory deadline if there was no money
owing. Ignorance of the law is not, however, an excuse, and was not a matter
beyond Ms. Fung’s control. It would not have provided a basis for the granting
of discretionary relief under subsection 220(3.1) of the Income Tax Act:
Sandler v. Canada (Attorney General), 2010 FC 459, at para. 12.
[10]
Insofar as the birth of Ms. Fung’s child was
concerned, as was noted in the second-level decision, this occurred some 10
months before Ms. Fung’s filing deadline for her T-1135 return. The onus was on
Ms. Fung to satisfy the Minister’s Delegate of the existence of circumstances
that would justify the granting of relief. Ms. Fung did not provide any medical
evidence to the Minister’s Delegate to support the claim that she made for the
first time in her Memorandum of Fact and Law that her child required “intensive care for an extended period of time”, and
there is no evidence in the record that was before the Minister’s Delegate that
would support this claim.
[11]
It was up to Ms. Fung to provide evidence to
support her request for relief to the Minister’s Delegate. It was not up to the
Minister’s Delegate to tell Ms. Fung what kind of evidence she had to provide
to support her request. Ms. Fung did not provide any information as to the type
of care that was required by her child, nor did she explain why she was unable
to obtain the services of a tax professional in a timely manner, even though it
appears that she had used the services of a tax professional in the past to
prepare her tax filings, and she ultimately retained a tax professional to
prepare her 2011 T-1135.
[12]
Indeed, Ms. Fung has not provided any evidence
as to any efforts that she may have made during the relevant period to
comply with her tax obligations in 2011-2012. In the circumstances, it was
entirely reasonable for the Minister’s Delegate to conclude that Ms. Fung had
not demonstrated the existence of circumstances that would justify the granting
of relief from the penalties and interest that had been assessed against her.
[13]
Consequently, the application is dismissed. On
the consent of the parties, the style of cause will be amended to replace the
“Canada Revenue Agency” as the respondent with the “Attorney General of
Canada”.
[14]
I have considered the issue of costs. It appears
to me that the respondent should be entitled to an order of costs, but in the
exercise of my discretion I am going to limit those costs to $500.
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