[OFFICIAL ENGLISH TRANSLATION]
|
Reference: 2003TCC930
|
|
Date: 20031216
|
|
Docket: 2002-4908(EI)
|
|
BETWEEN:
|
|
JUAN ARTURO PACHECO AGUILERA,
|
|
Appellant,
|
|
And
|
|
|
|
THE MINISTER OF NATIONAL REVENUE,
|
|
Respondent.
|
REASONS FOR JUDGMENT
Lamarre Proulx J.
[1] This appeal concerns part of the
assessment made by the Minister of National Revenue (the
"Minister") on May 31, 2002, against a company, 9103-1195
Québec Inc. (the "company"). The amount contested concerns
the amount of the Appellant's employment income.
[2] On July 18, 2002, the Payor asked
the respondent to reconsider the assessment of May 31, 2002. In
her letter of October 7, 2002, the Minister informed the company
of her decision to confirm the assessment because the Workers,
including the Appellant, held insurable employment, in accordance
with paragraph 6(g) of the Employment Insurance
Regulations.
[3] Another letter of October 7, 2002,
informed the Appellant that the employment insurance assessment
of $2,498.50 had been confirmed in his case because he was
an employee of this company. It is this decision of October 7,
2002, that is being appealed.
[4] The facts on which the Minister
relied to make her assessment against the Appellant are described
in paragraph 8 of the Reply to the Notice of Appeal (the
"Reply"):
(a) During the years
in question, the Payor operated an employment agency.
(b) During the years
in question, the Payor hired Workers who provided services to his
clients under the control and direction of these same
clients.
(c) During the years
in question, the Payor directly paid the Workers whom he
hired.
(d) In 2001, more
specifically in February and March, the Appellant worked for the
Payor.
(e) In 2001, the
Appellant received from the Payor the sum of $2,498.50.
[5] Counsel for the Appellant admitted
on the Appellant's behalf paragraphs 8
(a) to 8 (c). In the case of paragraphs 8(d) and 8(e), he
admitted that the Appellant had worked two weeks for the company
in February 2001 and had been paid $1,080.
[6] The Appellant testified. He
explained that he had in fact worked for the company as a night
security guard for a business that was a client of the company.
He was paid by cheque. He believed that he had received two or
three cheques totalling $1,080.
[7] Marc Casavant, an officer of
the Canada Customs and Revenue Agency (the "CCRA"), testified. He
explained that on February 14, 2002, he visited the company to
check the payroll records. He asked the accountant to prepare a
statement of the expenditures made by the company, including the
pays received by the Workers. This statement was filed as Exhibit
I-1.
[8] The officer made the assessments
based on this statement. He admitted that he did not see the
cheques. According to Exhibit I-1, dated February 28, 2001, three
cheques were issued to the Appellant in the amounts of $570,
$522.50 and $570 respectively. On March 9 and March 15,
2001, two cheques were issued to the Appellant, one for
$522.50 and the other for $313.50.
[9]
Luis Raoul Jimenez Serrano also testified at the
request of counsel for the Respondent. He and another person were
the shareholders of the company. He confirmed that the Appellant
worked in security for a business by the name of
"Mégabloc" from 7:00 p.m. until 7:00 a.m. He worked three
consecutive days, followed by two days of rest, then four
consecutive days of work. He was paid $9 an hour.
[10] The witness offered to produce a time
sheet concerning the Appellant prepared by the client business.
Counsel declined the offer, probably for two reasons: first,
because the witness was not the person who prepared the document
and, second, because Mr. Casavant did not take this document into
consideration in preparing the Appellant's statement of
employment income. The witness explained that three cheques were
issued on the same date because of a certain technical
problem.
[11] Counsel for the Appellant pointed out
that the cheques were not produced and that the amount of money
that the appellant received was not therefore clear.
[12] Counsel for the Respondent argued that
the Appellant received from the Payor the amount shown in
paragraph 8(e), as per the figures established by the
company's accountant and contained in Exhibit I-1. Counsel
noted that the Appellant's credibility was seriously undermined
by his Notice of Appeal. The Notice of Appeal, dated December 19,
2002, stated categorically that the Appellant had not worked for
the company in 2001 and 2002 and that he never held a job in
Canada. The Notice of Appeal stated that the Appellant applied
for jobs through a number of personnel agencies, including the
company, and that if amounts were paid in the Appellant's name,
this meant that the company used personal and private information
on the Appellant to pay another individual by appropriating the
Appellant's identity. The Notice of Appeal concluded by stating
that the Appellant was the victim of the company's unlawful
conduct.
Conclusion
[13] There is no doubt that the Appellant's
version of the facts changed significantly. At the hearing, he
admitted that he worked for two weeks in February, for which he
was paid $1,080.
[14] However, I must bear in mind that the
Department's officer did not see the pay cheques. Moreover, he
did not take into account the client business's time sheets. I
must also bear in mind that the Payor's explanation for the
issuing of three pay cheques on the same date was not very
clear.
[15] Assessing a taxpayer additional income
can have serious economic consequences and the Court must be very
certain before acting. I am certain that the Appellant was paid
the amount he indicated that he was paid for the work he did.
Based on the evidence presented, I am not sure that he was paid
more than the amount he admitted that he was paid for the work he
did.
[16] The appeal is therefore allowed on this
basis.
Signed at Ottawa, Canada, this 16th day of December, 2003.
Lamarre Proulx, J.
Certified true translation
Manon Boucher
Email this Content