Balti v. M.N.R., docket 96-538-UI

Date: 19980122

Docket: 96-538-UI

BETWEEN:

SALOUHA BALTI,

Appellant,

and

THE MINISTER OF NATIONAL REVENUE,

Respondent.

Reasons for Judgment

Charron, D.J.T.C.C.

[1] This appeal was heard at Québec, Quebec, on November 3, 1997, to determine whether the assessments of $2,179.30 and $2,010.80 made against the appellant on August 24, 1995, in respect of unemployment insurance premiums, including the interest applicable thereto, for 1994 and the period from January 1 to July 31, 1995, respectively, are correct having regard to the provisions of the Unemployment Insurance Act (“the Act”).

[2] By letter dated January 25, 1996, the respondent informed the appellant that the assessments had been confirmed because she was the deemed employer of the taxi drivers in question, whose employment was included in insurable employment by regulation.

Statement of facts

[3] The facts on which the respondent relied in making his determination are set out as follows in paragraph 6 of the Reply to the Notice of Appeal:

[TRANSLATION]

(a) in 1994 and 1995, the appellant did not make any source deductions for unemployment insurance premiums for the persons referred to in the list appended to this Reply to form an integral part hereof; (admitted)

(b) during the periods at issue, the appellant ran a taxi business in the Québec region; (admitted)

(c) the appellant owned two vehicles used for carrying passengers; (admitted)

(d) the appellant leased her two vehicles on a weekly basis for a fixed amount; (admitted)

(e) the appellant paid for repairs to the vehicles, while the drivers paid for their gas; (admitted)

(f) the appellant did not control the days worked by the taxi drivers; (admitted)

(g) the appellant kept no record of the drivers’ earnings and was unable to determine those earnings; (admitted)

(h) the workers in question drove taxis leased from the appellant; (admitted)

(i) the workers in question are not employed by the appellant under a contract of service; (admitted)

(j) during the years at issue, the workers in question held employment that was included in insurable employment. (admitted)

[4] The appellant admitted the truth of all the subparagraphs of paragraph 6 of the Reply to the Notice of Appeal.

Testimony of Ahmed El-Ghandouri

[5] The appellant, Salouha Balti, is Ahmed El-Ghandouri’s spouse. She owns two motor vehicles that her husband leases to several taxi drivers, specifically Bertrand Blouin, Martin Maltais, Lise Godin, Daniel Muise, Claude Charest and Daniel Barrette, so they can drive taxi. Those individuals are taxi drivers by trade and hold taxi permits. Ahmed leases the cars and his spouse receives from $300 to $320 in rent a week. The appellant pays for the cost of repairs, while the lessee pays only for the cost of gasoline. An average taxi driver drives about 1,000 kilometres a week and earns approximately $0.50 a kilometre.

[6] The Revenue Canada officer arbitrarily estimated the drivers’ gross wages at $700 a week for the purposes of unemployment insurance premiums, whereas Ahmed estimated it at $500 based on his experience. Relying on an arbitrary income of $780 and $815 a week, Revenue Canada assessed the appellant for $1,969.30 for 1994 and $1,954.80 for 1995, plus interest. It should be noted that the respondent arbitrarily reduced those wages by 33 1/3 percent to obtain an overall result of $520 and $543.

Analysis of the facts in relation to the law

[7] Counsel for the appellant acknowledged that he agreed with the respondent that the employment was insurable. He disputed only the basis for estimating the taxi drivers’ income, inasmuch as it had a direct impact on the assessment of the appellant.

[8] Paragraph 12(e) of the Unemployment Insurance Regulations includes a taxi driver’s employment in insurable employment. Even a self-employed driver who leases a car, pays for the gas used and is not subject to any control is automatically included in the group of people whose employment is insurable. The question no longer arises.

[9] Under subsection 17(3) of the Unemployment Insurance (Collection of Premiums) Regulations, where the earnings of a person whose employment is included in insurable employment by paragraph 12(e) of the Unemployment Insurance Regulations cannot be determined, the person is deemed to receive an amount equal to two-thirds of the maximum weekly insurable earnings. This was precisely the situation the Minister of National Revenue was dealing with when he made his determination. Ignorance of the law is no excuse.

[10] Mr. El-Ghandouri and the appellant did not prove that the assessments were calculated incorrectly. The facts on which the Minister of National Revenue relied in making the assessments were admitted, and the evidence did not show with any certainty what amount should have been used to calculate the unemployment insurance premiums to be paid by the appellant.

[11] Absent such evidence, the facts on which the Minister of National Revenue relied must be assumed to be true. The reason such evidence could not be produced was that the appellant made it impossible for her to do so, by not keeping records.

[12] Accordingly, the appeal is dismissed and the respondent’s determination is affirmed.

Signed at Ottawa, Canada, this 22nd day of January 1998.

“G. Charron”

D.J.T.C.C.

[OFFICIAL ENGLISH TRANSLATION]

Translation certified true on this 16th day of November 1998.

Kathryn Barnard, Revisor