Citation:
2018 TCC 30
Date: 20180212
Docket: 2016-4114(IT)G
BETWEEN:
SHIFRA
DRAZIN-BENDHEIM,
Appellant,
and
HER
MAJESTY THE QUEEN,
Respondent.
REASONS
FOR ORDER
Smith J.
I. Overview
[1]
This matter involves a motion by the Appellant
to strike certain portions of the Reply to the Notice of Appeal filed by the
Respondent, the Minister of National Revenue (the “Minister”). The motion was
heard on common evidence with the motion of the Appellant’s sister, Faiga
Drazin‑Joseph, in Court file No. 2016‑4113(IT)G.
[2]
The Appellant takes the position that some of
the allegations contained in the Reply should be struck pursuant to Section 53
of the Tax Court of Canada Rules (General Procedure) (the “Rules),
on the basis that they may prejudice or delay the fair hearing of the appeal,
are scandalous, frivolous or vexatious, or are otherwise an abuse of process of
the Court.
[3]
The Appellant seeks to strike the underlined
paragraphs of the Reply, namely:
17. In
determining that the Appellant made a misrepresentation attributable to
neglect, carelessness or willful default in filing her tax return for the 2005
taxation year, the Minister relied on the following facts:
(a) All
the facts mentioned at paragraph 16.
(b) The
Appellant voluntarily omitted to declare her profit as business income although
she knew, or must have known, that the co‑owners initial intention was to
convert the Property in separate condominiums and offer these for sale at a
profit.
(…)
21. He
submits that the Minister was allowed to assess the Appellant’s 2005 taxation
year as the Appellant made a misrepresentation that is attributable to
neglect, carelessness or wilful default in filing her income tax return.
22. He
submits that in fact, the Appellant voluntarily omitted to declare her
profit as revenue although she knew, or must have known, that the co‑owners
initial intention was to convert the Property in separate condominiums and
offer these for sale at a profit.
II. Background facts
[4]
The Appellant is a non‑resident of Canada.
On August 15, 2002, she acquired a 5.25% interest in a rental property
located in the City of Brossard, Quebec, in co‑ownership with others,
including three siblings, some of whom were residents of Canada.
[5]
From 2002 to 2005, the Appellant elected under
section 116 of the Income Tax Act, R.S.C., 1985, c. T‑2
(the “Act”) and paid Part 1 tax on her share of the net income. The
property was sold and the Appellant reported a capital gain of $1,417,500 for
the 2005 taxation year. She was assessed accordingly on May 8, 2006.
III. The audit process
[6]
The disposition described above was the subject
of an audit by the Canada Revenue Agency (the “CRA”). It wrote to the Appellant
on April 9, 2010 to advise her of a proposed reassessment and to provide
her with an opportunity to make representations. The proposed adjustment letter
indicated that “CRA considers the disposition of your property located at (…)
as an Active Business”.
[7]
The Appellant’s sister, who held an interest in
the property and was also a non‑resident of Canada, received a similar
proposal letter. It appears from the motion material and the testimony heard at
the hearing that the fair market value of the property was also an outstanding
issue, although it is not relevant to this proceeding.
[8]
In the context of the audit process, counsel for
the Appellant wrote to the CRA indicating that the proposed reassessment was
statute‑barred as it was being made beyond the normal reassessment period
that ended on May 8, 2009. Counsel specifically requested that the CRA
explain the basis for the proposed reassessment and CRA responded by letter
dated May 25, 2010 indicating that:
[TRANSLATION] “With respect to your second
enquiry relating to the statute‑barred years, subparagraph 152(4)(b)(iii)
of the ITA provides a supplementary delay of 3 years beyond the normal
assessment period in circumstances where the transaction involved the taxpayer
and a non‑resident person with whom the taxpayer does not deal at arm’s
length”.
[9]
The issue of the fair market value was
eventually resolved but the parties were unable to agree on the proposed
reassessment, as described above. In a second proposed adjustment letter dated
March 1, 2011, the CRA repeated its position that the proceeds of
disposition should have been reported as active business income and a Notice of
Reassessment issued accordingly on May 19, 2011.
[10]
The Appellant filed a Notice of Objection in due
course and the Minister issued a Notice of Confirmation on July 15, 2016.
IV. The pleadings
[11]
The Appellant filed a Notice of Appeal and took
the position that there were two issues, namely, whether the reassessment was
issued beyond the Appellant’s normal reassessment period and secondly, whether
at all material times, the subject property was a capital asset.
[12]
The Appellant also set out her understanding
that in assessing beyond the normal reassessment period, the Minister was
relying on subparagraph 152(4)(b)(iii) of the Act (as noted above)
and took the position that this statutory provision was not applicable to the
facts at hand since it dealt with a taxpayer who was involved in a transaction
with a non‑resident with whom the taxpayer was not dealing at arm’s
length. It was argued that the Appellant could not be both a “non‑resident”
and a “taxpayer” for the purposes of that provision.
[13]
It is important to note that the Reply to the
Notice of Appeal neither refers to nor mentions subparagraph 152(4)(b)(iii)
of the Act. It simply notes “the issues to be decided and the statutory
provisions as they are stated by the Appellant, as well as the reasons stated
(…) but denies them as ill‑founded in fact and in law”. The assumptions
of fact are set out in paragraph 16, followed by the impugned
paragraphs 17, 21 and 22 or portions thereof, as reproduced above.
[14]
The Appellant thereafter filed on Answer,
paragraphs 4 to 7 of which are reproduced as follows:
4. The
Appellant denies, as stated, the allegations contained in paragraphs 16f),
16i), 16j), 16n), 17a) and 17b) of the Reply to the Notice of Appeal.
5. The
Appellant takes note of the statuary provisions and the issues to be decided as
they are stated by the Respondent, as well as the reasons stated at
paragraphs 21 and 22 of the Reply to the Notice of Appeal, but deny them
as unfounded in fact and in laws.
6. Subsection [sic] 152(4)(a)(i)
of the Income Tax Act addresses a misrepresentation of fact, as opposed
to statement of law or mixed statement of fact and law.
7. The
Appellant did not make any misrepresentation of facts that is attributable to
neglect, carelessness or willful default in filing her income tax return for
the 2005 taxation year: (…)
[15]
Following the close of pleadings and upon
agreement of both parties, the Court issued a timetable Order on May 17,
2017 which required, inter alia, that examinations for discovery be
completed by September 15, 2017.
[16]
The motion to strike was filed on
August 31, 2017 and at the conclusion of the hearing, the Court issued an
Interim Order suspending the timetable Oder until the final disposition of this
matter.
V. The motion to strike
i) The evidence submitted
[17]
The Respondent submitted the affidavit of Ms.
Farah De Vito who was the appeals officer at the relevant time. She was not
called as a witness and was not the subject of cross‑examinations prior
to or at the hearing of the motion.
[18]
The Appellant submitted the affidavit of
Mr. Pierre‑Paul Persico, counsel with the law firm of Spiegel Sohmer
Inc. He testified at the hearing and in examination in chief, explained his
role in the audit process commencing shortly after the issuance of the first
proposed adjustment letter of April 9, 2010, (while acknowledging that
other lawyers were also involved). He indicated that the focus of the earlier
discussions with the CRA was the issue of the fair market value of the subject
premises and the liability of a numbered company.
[19]
Mr. Persico indicated that he had several
telephone conversations and meetings with Ms. Maryse Patenaude, the CRA auditor.
With respect to the issue of the proposed reassessment of the Appellant, he
understood that the CRA was not alleging fraud and would not be assessing gross
negligence penalties. As noted above, he requested and obtained written
confirmation from Ms. Patenaude in her letter of May 25, 2010 that
CRA was relying on subparagraph 152(4)(b)(iii) of the Act.
[20]
He also indicated that while there had been a
mention of a “voluntary omission”, he was very surprised to learn, upon reading
the Reply that the Minister was now relying on the fact that there had been a
misrepresentation attributable to willful default and not on the aforementioned
provision of the Act.
[21]
During cross‑examinations,
Mr. Persico acknowledged that neither the second proposed adjustment
letter of May 9, 2011 nor the Notice of Reassessment referred to any
statutory provision. He also acknowledged that prior to signing his affidavit,
he had reviewed the Audit Report (Form T20‑R1) prepared by
Ms. Patenaude but not the Report on Objection (Form T401) nor the
Memo to file (Form T2020) containing Ms. De Vito’s notes from June
2012 to June 2016. Mr. Persico acknowledged finally, that
Ms. De Vito had raised the issue of a “voluntary omission” on at
least a few occasions and that in her report she had referred to this as a
supplementary ground of assessment.
ii) The
Appellant’s position
[22]
As noted at the outset, the Appellant argues
that the impugned paragraphs of the Reply should be struck on the basis that
they may prejudice or delay the fair hearing of the appeal, are scandalous,
frivolous or vexatious and an abuse of process of the Court since they raise a
new basis for the reassessment.
[23]
The Appellant finds support for her argument in paragraph 49(1)(d)
of the Rules relating to the preparation of the Reply. One of the requirements
is that the Minister must state “the findings or assumptions of fact made by
the Minister when making the assessment”.
[24]
The Appellant argues that the Minister
explicitly relied on subparagraph 152(4)(b)(iii) of the Act and
that the Minister, having accepted the Appellant’s argument that this provision
was inapplicable, cannot after the fact take the position that the appropriate
provision is subparagraph 152(4)(a)(i) which refers to a situation
where a taxpayer has made “a misrepresentation that is attributable to neglect,
carelessness or willful default”.
[25]
The Appellant argues that the Minister is
precluded from advancing an alternate argument in respect of the Appellant’s
2005 taxation year on the basis of subparagraph 152(4.01)(a)(i) of
the Act and that the Minister cannot rely on subsection 152(9) to cure the
defect. Both of these provisions are reproduced in the attached Schedule hereto.
iii) The
Respondent’s position
[26]
The Respondent raises a preliminary objection
based on a procedural issue and argues that it is improper to bring a motion to
strike at this stage in the proceedings, notably after the close of pleadings
and after the Appellant has agreed to a timetable Order.
[27]
The Respondent adds that the Appellant cannot
seek to strike provisions of the Reply to which it has already pleaded and
addressed in the Answer, portions of which have been reproduced above.
[28]
Moreover, the Respondent argues that whether the
Minister exclusively relied on subparagraph 152(4)(b)(iii) of the Act
or not, involves a factual determination that is best left to the trial judge.
Despite the Appellant’s understanding that the Minister was specifically
relying on that provision, the Respondent argues that the evidence is equivocal
at best and that counsel for the Appellant had been informed on several
occasions that the Minister viewed the Appellant’s failure to report the gain
as business income, as a “voluntary omission”.
[29]
Finally, the Respondent argues that the Minister
may, in any event, pursuant to subsection 152(9) of the Act, advance an
alternate basis for the reassessment at any time up to the confirmation of the
reassessment.
VI. Analysis
[30]
The Appellant relies on Section 53 of the
Rules, which provides as follows:
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Striking out a
Pleading or other Document
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Radiation d’un acte de procédure ou d’un autre
document
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53 (1) The Court may, on its
own initiative or on application by a party, strike out or expunge all or
part of a pleading or other document with or without leave to amend, on the
ground that the pleading or other document
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53 (1) La Cour peut, de son
propre chef ou à la demande d’une partie, radier un acte de procédure ou tout
autre document ou en supprimer des passages, en tout ou en partie, avec ou
sans autorisation de le modifier parce que l’acte ou le document :
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(a) may prejudice or delay the fair
hearing of the appeal;
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a) peut compromettre ou retarder l’instruction équitable de
l’appel;
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(b) is scandalous, frivolous or vexatious;
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b) est scandaleux, frivole ou vexatoire;
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(c) is an abuse of the process of the Court; or
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c) constitue un recours abusif à la Cour;
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(…)
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[…]
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[31]
It is apparent that this provision does not
explicitly or implicitly set out a delay or time period for the filing of a
motion to strike.
[32]
It is also noted that while pleadings may be
amended “at any time before the close of pleadings” or with the “consent of all
parties (…) or with leave of the court”, as provided for in Section 54,
Section 53 does not specifically address the issue or provide any real
guidance.
[33]
The Appellant argues that the Answer was filed
to meet the thirty day deadline set out in Section 45 and that she waited
for delivery of certain documents following an access to information request,
prior to preparing and filing the motion to strike.
[34]
The Respondent argues that it is too late and that
it is not permissible to file a motion to strike after the close of pleadings
and after the filing of an answer where “the party seeking to strike has
already pleaded to the allegations contained in the impugned paragraphs”,
relying on Proctor & Gamble Co. v. Nabisco Brands Ltd. (F.C.A.),
[1985] F.C.J. No. 517 (QL); and Dene Tsaa First Nation v. Canada,
[2001] F.C.J. No. 1177 (QL), at paras. 3-4.
[35]
It must be remembered that the Appellant’s
initial argument was that the Reply did not comply with paragraph 49(1)(d)
of the Rules in that it did not set out the actual “findings or assumptions of
fact made by the Minister when making the assessment”. If in fact that was the
case, and this Court reaches no conclusion on the issue, then the Appellant is
effectively alleging that the impugned paragraphs of the Reply are an
“irregularity”. Viewed from that perspective, the Court turns to Section 8
of the Rules which provides as follows:
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Attacking
Irregularity
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Irrégularité
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8. A
motion to attack a proceeding or a step, document or direction in a
proceeding for irregularity shall not be made,
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8. La requête
qui vise à contester, pour cause d’irrégularité, une instance ou une mesure
prise, un document donné ou une directive rendue dans le cadre de celle-ci,
ne peut être présentée, sauf avec l’autorisation de la Cour :
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(a) after the expiry of a reasonable
time after the moving party knows or ought reasonably to have known of the
irregularity, or
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a) après
l’expiration d’un délai raisonnable après que l’auteur de la requête a pris
ou aurait raisonnablement dû prendre connaissance de l’irrégularité, ou
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(b) if the moving party has taken
any further step in the proceeding after obtaining knowledge of the
irregularity,
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b) si
l’auteur de la requête a pris une autre mesure dans le cadre de l’instance
après avoir pris connaissance de l’irrégularité.
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except with leave
of the Court.
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[36]
This provision refers to “a motion to attack a
proceeding or a step, document or direction in a proceeding (…)”. Although
a motion to strike is a distinct remedy, I find that it is captured by the
broad language of this provision. While Section 53 does not expressly
state when a motion to strike may be made, Section 8 provides some
guidance as to when such motion “shall not be made”.
[37]
Paragraph 8(a) refers to “a reasonable
time” after the moving party was made aware of the irregularity. In this
instance, the Appellant’s basic position was that she first realized that the
Minister was relying on a “voluntary omission” and not on
subparagraph 152(4)(b)(iii) of the Act, upon receipt of the Reply
in February 2017. The motion to strike was filed six months later.
[38]
Paragraph 8(b) refers to “any further step
in the proceedings after obtaining knowledge of the irregularity”. As noted
above, the Appellant filed an Answer that addressed the impugned paragraphs of
the Reply and thereafter consented to the timetable Order. I find that these
were both fresh steps.
[39]
I find support for this analysis in the decision
of Kulla v. The Queen, 2005 TCC 136, where the Appellant sought to
strike certain portions of the Respondent’s Amended Reply, having previously
served their list of documents and attended examinations for discovery. The
Respondent raised the applicability of Section 8 of the Rules and
Miller C. J. dismissed the motion on that basis indicating that:
[6] I find the Appellants have waited
too long and undertaken too many steps for this Court to grant it leave
pursuant to Rule 8. I am satisfied that Rule 8 can apply to a motion brought
pursuant to Rule 53; that is, that an application to strike out portions of
pleadings is subject to what is called the fresh-step rule.
[7] Justice Rip, in Gee v. The
Queen, after referring to Rule 8, stated:
Where an applicant has delayed for as
long as the appellant has in bringing a motion to strike or has taken fresh
steps after being served with a pleading, I normally would reject the
applicant's motion. ...
Similarly, Justice Bowman, in Imperial
Oil Limited et al. v. The Queen, indicated:
The "fresh-step" rule is
one that has been part of the rules of practice and procedure in Canada and the
United Kingdom for many years. There is a great deal of jurisprudence on what
constitutes a fresh step but the rule is based on the view that if a party
pleads over to a pleading this implies a waiver of an irregularity that might
otherwise have been attacked. ...
(…)
[40]
Section 8 provides that a motion described
therein may only be made “with leave of the court”, clearly suggesting that it
is discretionary, as confirmed by Kossow v. The Queen, 2009 FCA 83,
paras. 17 and 18 (leave to appeal to the Supreme Court of Canada denied).
[41]
It is apparent that the Appellant has not sought
leave of the Court pursuant to Section 8. However, if the Court accepts
that such a request has implicitly been made within the context of the motion
to strike, the Court concludes that there are good reasons to decline to
exercise that discretion.
[42]
In particular, this Court is not prepared to
grant leave pursuant to Section 8, given the nature of a motion to strike
which was recently reviewed in Gramiak v. The Queen, 2013 TCC 383
(upheld by the Federal Court of Appeal at 2015 FCA 40). Rossiter C.J. indicated
that:
[30] The plain and obvious test has
been longstanding and widely accepted in Canadian jurisprudence as the test for
motions to strike. In Sentinel Hill Productions (1999) Corporation, Robert
Strother v. the Queen, 2007 TCC 742, Bowman, C.J., provided a useful
overview of the principles that govern the application of Rule 53:
[4] I shall begin by outlining
what I believe are the principles to be applied on a motion to strike under
Rule 53. There are many cases in which the matter has been considered both in
this court and the Federal Court of Appeal. It is not necessary to quote from
them all as the principles are well established.
(a) The
facts as alleged in the impugned pleading must be taken as true subject to the
limitations stated in Operation Dismantle Inc. v. Canada, [1985] 1
S.C.R. 441 at 455. It is not open to a party attacking a pleading under Rule 53
to challenge assertions of fact.
(b) To
strike out a pleading or part of a pleading under Rule 53 it must be plain and
obvious that the position has no hope of succeeding. The test is a stringent
one and the power to strike out a pleading must be exercised with great care.
[Emphasis added]
(c) A
motions judge should avoid usurping the function of the trial judge in making
determinations of fact or relevancy. Such matters should be left to the judge
who hears the evidence. [Emphasis added]
(d) Rule
53 and not Rule 58, is the appropriate rule on a motion to strike.
[31] Chief Justice McLachlin wrote for
the Supreme Court in Knight v. Imperial Tobacco Canada Ltd., 2011 SCC
42:
"This Court has reiterated the
test on many occasions. A claim will only be struck if it is plain and obvious,
assuming the facts pleaded to be true, that the pleading discloses no
reasonable cause for action:... Another way of putting the test is that the
claim has no reasonable prospect of success. Where a reasonable prospect of
success exists, the matter should be allowed to proceed to trial."
Further:
"...The judge on a motion to
strike asks if the claim has any reasonable prospect of success. In the world
of abstract speculation, there is a mathematical chance that any number of
things might happen. That is not what the test on a motion to strike seeks to
determine. Rather, it operates on the assumption that the claim will proceed
through the court system in the usual way - in an adversarial system where
judges are under a duty to apply the law as set out in (and as it may develop
from) statutes and precedent. The question is whether, considered in the
context of the law and the litigation process, the claim has no reasonable
chance of succeeding."
[32] More recently, this Court applied
the plain and obvious test in Canadian Imperial Bank of Commerce v. R.,
2011 TCC 568 ("CIBC").
"Only if the position taken in
the Reply is certain to fail because it contains a radical defect should the
relevant portions of the Respondent's Reply be struck."
[43]
Having reviewed the test for a motion to amend
pleadings, Rossiter C.J. noted that “in contrast, the plain and obvious test
applied to striking motions is significantly higher, more stringent, and the
courts have ruled that striking pleadings is to be done only in the most
exceptional cases” (para. 35).
[44]
The Respondent rightfully argues that the
Appellant cannot challenge assertions of fact in a motion to strike. Whether
the Appellant has “made a misrepresentation attributable to neglect,
carelessness or willful default” or whether she has done so “voluntarily” as
set out in the impugned paragraphs, are all questions of fact which must be
taken to be true for the purposes of this motion. Moreover, it is not up to
this Court, in the context of a motion to strike to make findings of fact as to
whether the reassessment was only based on subparagraph 152(4)(b)(iii).
The Appellant’s own evidence at the hearing on this issue was inconclusive. As
such, it cannot be said that it is plain and obvious that the Respondent’s
position, as set out in the impugned paragraphs, has no hope of succeeding. These
are all matters that are best left to the trial judge.
[45]
There appears to be no basis to the argument
that the impugned paragraphs are “an abuse of process of the court” or that
they “may prejudice or delay the fair hearing of the appeal”. Au contraire,
the Court is of the view that the evidence needs to be fully fleshed out and
heard in its totality before a trial judge.
[46]
As to the suggestion that the impugned
paragraphs are “scandalous, frivolous or vexatious”, the matter was addressed
in Sentinel Hill 1999 Master Limited Partnership (Designated Member of) v.
Canada, 2007 TCC 748, where Bowman C.J. (as he then was) indicated that:
(…) However much jurisprudence may
surround the words "scandalous, frivolous or vexatious, or abuse of the
process of the Court", they are nonetheless strong, emotionally charged
and derogatory expressions denoting pleading that is patently and flagrantly
without merit. Their application should be reserved for the plainest and most
egregiously senseless assertions -- as for example in William Shawn
Davitt v. The Queen, 2001 D.T.C. 702. Where senior and experienced counsel
advances a proposition of fact or law in a pleading that merits serious consideration
by a trial judge, it is at least presumptuous and at most insulting and
offensive to force counsel to face the argument that the position is so lacking
in merit that it does not even deserve to be considered by a trial judge. (…)
VII. Conclusion
[47]
As a result of this analysis, the Court
concludes that it is not necessary to address the questions as to whether the
Minister is precluded from advancing an alternate basis for reassessment
pursuant to subparagraph 152(4.01)(a)(i) or whether the Minister is
entitled to do so pursuant to subsection 152(9). Those arguments and the
case law relied upon by the respective parties, are best left to the trial
judge.
[48]
For all the foregoing reasons, the motion to
strike is dismissed with costs to the Respondent in any event of the cause.
Signed at Ottawa, Canada,
this 12th day of February 2018.
“Guy Smith”
SCHEDULE
Relevant Statutory Provision
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Assessment
and reassessment
152(4) The Minister may at any time
make an assessment, reassessment or additional assessment of tax for a
taxation year, interest or penalties, if any, payable under this Part by a
taxpayer or notify in writing any person by whom a return of income for a
taxation year has been filed that no tax is payable for the year, except that
an assessment, reassessment or additional assessment may be made after the
taxpayer’s normal reassessment period in respect of the year only if
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Cotisation
et nouvelle cotisation
152(4) Le ministre peut établir une
cotisation, une nouvelle cotisation ou une cotisation supplémentaire
concernant l’impôt pour une année d’imposition, ainsi que les intérêts ou les
pénalités, qui sont payables par un contribuable en vertu de la présente
partie ou donner avis par écrit qu’aucun impôt n’est payable pour l’année à
toute personne qui a produit une déclaration de revenu pour une année
d’imposition. Pareille cotisation ne peut être établie après l’expiration de
la période normale de nouvelle cotisation applicable au contribuable pour
l’année que dans les cas suivants :
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(a) the taxpayer or person filing
the return
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a) le contribuable ou la personne
produisant la déclaration :
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(i) has made any misrepresen-tation that is
attributable to neglect, carelessness or wilful default or has committed any
fraud in filing the return or in supplying any information under this Act, or
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(i) soit a fait une présentation erronée des faits, par
négligence, inattention ou omission volontaire, ou a commis quelque fraude en
produisant la déclaration ou en fournissant quelque renseigne-ment sous le
régime de la présente loi,
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(ii) has filed with the Minister a waiver in
prescribed form within the normal reassess-ment period for the taxpayer in
respect of the year;
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(ii) soit a présenté au ministre une renonciation, selon le
formulaire prescrit, au cours de la période normale de nouvelle cotisation
applicable au contribuable pour l’année;
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(b) the assessment, reassessment or
additional assessment is made before the day that is 3 years after the end of
the normal reassessment period for the taxpayer in respect of the year and
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b) la cotisation est établie avant
le jour qui suit de trois ans la fin de la période normale de nouvelle
cotisation applicable au contribuable pour l’année et, selon le cas :
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(i) is required under subsec‑
tion (6) or (6.1), or would be so required if the taxpayer had claimed an
amount by filing the prescribed form referred to in the subsection on or
before the day referred to in the subsection,
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(i) est à établir en vertu du
paragraphe (6) ou (6.1), ou le serait si le contribuable avait déduit une
somme en présentant le formulaire prescrit visé à ce paragraphe au plus tard
le jour mentionné à ce paragraphe,
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(ii) is made as a consequence of the
assessment or reassess-ment pursuant to this paragraph or subsection 152(6)
of tax payable by another taxpayer,
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(ii) est établie par suite de
l’établissement, en application du présent paragraphe ou du paragraphe (6),
d’une cotisa-tion ou d’une nouvelle cotisation concernant l’impôt payable par
un autre contribuable,
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(iii) is made as a consequence of a
transaction involving the taxpayer and a non-resident person with whom the
taxpayer was not dealing at arm’s length,
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(iii) est établie par suite de la
conclusion d’une opération entre le contribuable et une personne non
résidente avec laquelle il avait un lien de dépendance,
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(…)
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[…]
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Extended period
assessment
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Période de cotisation prolongée
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152(4.01) Notwithstanding subsec-tions (4) and (5), an
assessment, reassessment or additional assessment to which paragraph (4)(a),
(b), (b.1), (b.3) or (c) applies in respect of a taxpayer for a taxation year
may be made after the taxpayer’s normal reassessment period in respect of the
year to the extent that, but only to the extent that, it can reasonably be
regarded as relating to,
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512(4.01) Malgré les paragraphes (4)
et (5), la cotisation, la nouvelle cotisation ou la cotisation
supplémen-taire à laquelle s’appliquent les alinéas (4)a), b), b.1), b.3) ou
c) relativement à un contribuable pour une année d’imposition ne peut être
établie après l’expiration de la période normale de nouvelle cotisation
applicable au contribuable pour l’année que dans la mesure où il est
raisonnable de considérer qu’elle se rapporte à l’un des éléments
suivants :
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(a) where paragraph 152(4)(a) applies to the
assessment, reassessment or additional assessment,
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a) en cas d’application de l’alinéa
(4)a):
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(i) any misrepresentation made by the taxpayer
or a person who filed the taxpayer’s return of income for the year that is
attributable to neglect, carelessness or wilful default or any fraud
committed by the taxpayer or that person in filing the return or supplying
any information under this Act, or
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(i) une présentation erronée des faits par le contribuable ou
par la personne ayant produit la déclaration de revenu de celui-ci pour
l’année, effectuée par négligence, inattention ou omission volontaire ou
attribuable à quelque fraude commise par le contribuable ou cette personne
lors de la production de la déclaration ou de la communication de quelque
renseignement sous le régime de la présente loi,
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(ii) a matter specified in a waiver filed with
the Minister in respect of the year;
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(ii) une question précisée dans une renonciation présentée au ministre
pour l’année;
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(…)
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[…]
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Alternative basis for assessment
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Nouveau fondement ou
nouvel argument
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152(9) At any time after the normal reassessment period, the
Minister may advance an alternative basis or argument — including that
all or any portion of the income to which an amount relates was from a
different source — in support of all or any portion of the total amount
determined on assessment to be payable or remittable by a taxpayer under this
Act unless, on an appeal under this Act
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152(9) Après l’expiration de la période
normale de nouvelle cotisation, le ministre peut avancer un nouveau fondement
ou un nouvel argument — y compris un fondement ou un argument selon lequel
tout ou partie du revenu auquel une somme se rapporte provenait d’une autre source
— à l’appui de tout ou partie de la somme totale qui est déterminée lors de
l’établissement d’une cotisation comme étant à payer ou à verser par un
contribuable en vertu de la présente loi, sauf si, sur appel interjeté en
vertu de la présente loi :
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(a) there is relevant evidence that the
taxpayer is no longer able to adduce without the leave of the court; and
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a) d’une part, il existe des éléments de preuve que le
contribuable n’est plus en mesure de produire sans l’autorisation du
tribunal;
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(b) it is not appropriate in the circumstances
for the court to order that the evidence be adduced.
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b) d’autre part, il ne convient pas que le tribunal ordonne la
production des éléments de preuve dans les circonstances.
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(…)
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[…]
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