Date: 20061026
Docket: A-515-05
Citation: 2006 FCA 351
CORAM: NOËL
J.A.
EVANS
J.A.
MALONE
J.A.
BETWEEN:
N.A. JOHNSON LTD
Appellant
and
HER MAJESTY THE QUEEN
Respondent
A-516-05
BETWEEN:
MANUFAX HOLDINGS INC.
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered from the Bench at Vancouver, British Columbia on October 26, 2006)
NOËL J.A.
[1]
These are
appeals from two judgments delivered by Rip J. of the Tax Court of Canada (as
he then was) (2005 TCC 645) upholding penalties assessed against each appellant
for failure to remit on time amounts withheld pursuant to subsection 153(1) of
the Income Tax Act. The matter before the Tax Court was heard on common
evidence and the appeals therefrom were consolidated by order of this Court
dated January 12, 2006.
[2]
The appellants
who are represented by their president Norman A. Johnson take issue with all
the findings made by the Tax Court Judge. In particular, they take the position
that it was not established that they are “prescribed persons”; that the period
contemplated by paragraph 108(1.1)(b) of the Income Tax Regulations (the
“Regulations”) does not end on May the 3rd; and that the
“average monthly withholding amounts” provided for in Regulation 108(1.2)(b)
were miscalculated. The appellants further challenge the Tax Court Judge’s
finding that the remittances were not received by the Canada Customs and
Revenue Agency (the “CCRA”) until May 7, 2004.
[3]
The first
three issues are canvassed fully in the decision under appeal, and we cannot detect
any error in the conclusion reached by the Tax Court Judge on these points. With
respect to the date of receipt of the remittances, no evidence was adduced by
the appellants with the result that it was open to the Tax Court Judge to
accept the affidavit and supporting evidence tendered by the CCRA indicating
that the amounts were received on May 7, 2004.
[4]
The real
question which the appellants appear to be pursuing has more to do with
fairness than anything else. They argue that in this case they were induced to
remit the withheld amounts as they did by the window envelope and addressed
remittance forms provided by the CCRA.
[5]
However,
Rip J. did not accept the submission that Mr. Johnson, as the president and
controlling shareholder of the appellants, was in fact misled. He pointed out
that Mr. Johnson was aware that financial institutions could be used for making
remittances, and that other corporations that he owned did make remittances
that way (Appeal Book Vol. 2, Transcript p. 49, 63). According to the Tax Court
Judge, the appellants with proper diligence could have avoided the mistake
which they made (Reasons, para. 21).
[6]
We see no
reason to interfere with this conclusion. The appeal will accordingly be
dismissed with costs. In conformity with the order consolidating the two appeals,
these reasons and the accompanying judgment will be filed in Docket A-515-06
and a copy thereof will be filed in Docket
A-516-05.
“Marc
Noel”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-515-05
STYLE OF CAUSE: N.
A. Johnson Ltd. v.
Attorney General of Canada
PLACE OF
HEARING: Vancouver, British
Columbia
DATE OF
HEARING: October
26, 2006
REASONS FOR
JUDGMENT OF THE COURT: Noël, J.A.
Evans,
J.A.
Malone,
J.A.
DELIVERY
FROM THE BENCH BY: Noël,
J.A.
APPEARANCES:
N. A. Johnson,
P. Eng FOR THE
APPELLANT
(as
representative)
David Everett
Victor Caux FOR
THE RESPONDENT
SOLICITORS
OF RECORD:
|
John H. Sims,
Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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