Sussex Group – Tax Court of Canada reverses a s. 227(9) penalty in full because its amount was established by the taxpayer to be partially incorrect
The appellant determined that the remuneration paid to its two employees (the Suttons) would be allocated as to $165,000 and $192,000 to Mrs. and Mr. Sutton, respectively. CRA noted that all but $12,675 of such remuneration had been deposited into the bank account of Mr. Sutton, considered that all of such deposits to his account were remuneration received by him, and imposed a late source-deductions remittance penalty under s. 227(9) on the appellant regarding its computed under-remittance.
In finding that Mrs. Sutton had constructively received remuneration in excess of the $12,675 deposited into her account, Gagnon J stated:
Case law has noted that the word “receive” means to get or to derive benefit from something, therefore to “enjoy its advantages without necessarily having it in one’s hands”. Moreover, an amount of money is deemed received by an employee when it is available to the employee. …
[A]lthough this Court cannot confirm the exact remuneration received by Mrs. Sutton, and indirectly by Mr. Sutton, it remains clear that the remuneration used by the CRA to assess the penalty is incorrect.
After having noted that “the Crown bears the onus for the penalty,” and in reversing the penalty, Gagnon J stated:
The role of the Court is to determine whether the penalty was either validly imposed or not. …. And adjusting the quantum of a given penalty would be beyond the jurisdiction of this Court. On that basis, it is determined that the evidence in the present case does not support that the conditions to levy the penalty as determined by the Minister have been established.