His Majesty the King v. W. J. Batters, [1917-27] CTC 259

FULLERTON, J.A.:—Upon the hearing of an information for failing to make a return under the Income War Tax Act, 1917 (Can.), c. 28, as amended by 1920 (Can.), ec. 49, the defendant swore that he had made a return and the Police Magistrate accepted his statement and dismissed the charge, holding that under such circumstances sec. 8 of the said Act did not apply to the defendant.

At the request of the Crown he reserved the question as to whether he was right in so holding.

Sec. 8(1) as re-enacted by see. 11 of 1920 (Can.), c. 49, reads:

"" 8(1) If the Minister, in order to enable him to make an assessment or for any other purpose, desires any information or additional information or a return from any person who has not made a return, or a complete return, he may by registered letter demand from such person such information, additional information or return, and such person shall deliver to the Minister such information, additional information or return within thirty days from the date of mailing of such registered letter ’’

The statute enables the Minister to demand a return from "any person who has not made a return’’. The defendant swears he has made a return and the Magistrate believes him. He is not, therefore, a ‘‘person who has not made a return’’ within the meaning of the section.

I would answer the question in the affirmative.

DENNISTOUN, J.A. agrees with FULLERTON, J.A.

PRENDERGAST, J.A.:—This is a case stated by R. M. Noble, P.M., under see. 761 of the Criminal Code, R.S.C. 1906, ce. 146, upon his dismissal of an information which is to the effect: ‘That W. J. Batters, on February 22 and 23, 1922, after demand made, failed to make to the Minister of Finance of the Dominion of Canada, a return of his income for the year 1920. required of him to be given pursuant to see. 8 of the Income War Tax Act 1917, and amendments thereto relating.’’

The demand above referred to, dated March 25, 1924, is in part as follows:

"‘Take notice that a return of your income for the 1920 taxation period, required of you to be given under sec. 1 of the Income War Tax Act, 1917, as amended, is hereby demanded.

“If the blank Income Tax Forms previously sent you have been lost or mislaid, further forms to enable you to comply with this demand may be procured from the Inspector of Taxation . . ..

‘‘The return on completion must be delivered in duplicate to the above mentioned Inspector.

"Further take notice that this demand is made under and by virtue of s. 8 of the said Act as amended. Failure to comply therewith within 30 days from the date of mailing of this notice, renders you liable to a penalty of $25 for each day of default thereafter, whether you have a taxable income or not. ‘ ‘

Sec. 8 of the Income War Tax Act, as re-enacted, under which the demand was made, is in part quoted ante p. 726.

At the hearing, after the prosecution had duly established that the demand was properly made under the statute, the respondent was allowed to testify to the effect that he had duly made a return for the said year when the same was first due, which was on or about April 28, 1921,—admitting at the same time that he had duly received the demand on which the information is based, but that he did not pay any attention to it.

The questions submitted are the following:

1. "Was I right in accepting the evidence of the accused that he had filed a return of his income tax for the year 1920, in the face of the evidence filed by the Crown?”

2. "Having accepted the statement of the accused that he had filed a return of his income for the year 1920, was I correct in holding that s. 8 of the Income War Tax Act 1917, and amendments thereto relating, did not apply to the accused and that the accused was under no liability to make another return upon demand ? ‘ ‘

It would be unfortunate, of course, if anyone who is otherwise liable to be taxed under the Act, could be made to escape the same from the mere fact that his return has miscarried c: been mislaid in the departmental offices. For that reason, the powers claimed here for the Minister, far from being exorbitant, would seem to be most reasonable indeed. As reasonable as they may seem to be, however, the question is still whether they are within the true intent of the Act, and that intent must be gathered from the language it uses.

See. 8(1) may be considered as containing three parts. The first states the conditions in which the Minister may make the demand; the second gives the Minister power to make the demand, and the third defines the duties of the person served with the demand.

The second part states that the Minister may by registered letter demand from such person such information, additional information or return’’; and the third part, that ^such person shall deliver to the Minister such information, additional information or return’’. The words "‘such person’’ must here refer to some person previously described, and I cannot see that there is any person previously described that they can refer to, other than "‘any person who has not made a return or a complete return’’, as set forth in the first part of the section.

The words ‘‘who has not made a return’’ can have but one meaning in my opinion, and I would not make so free as to construe the section as if it also included the words ‘‘or whose return has miscarried or become lost’’.

That it is advisable, most advisable indeed, that the Minister should have the powers claimed, is of corse not a sufficient reason for reading them into the Act.

In my opinion, the two questions should be answered “Yes”.

TRUEMAN, J.A. (dissenting) :—A demand under sec. 8(1) of the Income War Tax Act, 1917, as amended, for a return of his income for the 1920 period of taxation was made upon the respondent W. J. Batters, of Winnipeg, by registered letter mailed on January 18, 1922. In the letter it is stated that if the blank Income Tax Forms previously sent to him have been lost or mislaid, further forms to enable him to comply with the demand may be procured from the Inspector of Taxation at Winnipeg. On the hearing of an information charging that he had failed to comply with the demand, the respondent gave evidence that on April 28, 1921, he made a return (a copy of which he produced) to the office of the Inspector of Taxation at Winnipeg, either by personal delivery or by mail. R. M. Noble, P.M., accepted the evidence and dismissed the charge on the ground that a return having been made the demand was not authorized by sec. 8(1) of the Act. On the Crown ‘s request, he reserved the question of law decided by him for consideration by this Court.

See. 8(1) provides as quoted ante.

It is not necessary to read words literally when to do so is to give them an effect it is plain they were not intended to have. Then sense of the section is that a return has not been made if the Department has not got it, even though one was delivered. On what ground of reason or public policy can it be suggested that if an individual has made a return which has been lost either in the mail or by some other casualty, he cannot be called upon to make another, though without it his income cannot be assessed? The contention would have validity if the purpose of the words could be said to be to protect him from the vexation or inconvenience of making a second return. The section has no other object than to give the Minister power to demand a return. The power is as much needed in the case of a lost return as where there is a failure to make a return. If the evidence on behalf of the Crown in a prosecution under the section shows that a return had not been made by the defendant at the time the demand for a return was mailed and that the demand has not been complied with, I cannot see that the defence that a return was made previous to the demand has any relevance; the words upon which the question in hand turns not being enacted for the defendant’s benefit. The provision is not a penal clause to be benevolently construed in favour of the accused. It gives 30 days’ additional grace to a person who according to the Department’s records has not made a return. If a return is made within that time no penalty is imposed.

In my opinion, with respect, the Police Magistrate erred in dismissing the charge.

Appeal dismissed.