Date:20020409
Docket: 2001-3861-GST-I
BETWEEN:
410812 ONTARIO LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasonsfor
Judgment
BOWMAN, A.C.J.
[1]
This appeal is from an assessment of Goods and Services Tax
("GST") made under Part IX of the Excise Tax Act
for the period from May 1, 1993 to April 30, 1999.
[2]
The notice of appeal put in issue a number of matters such as the
penalty and interest assessed under section 280, the quantum
of the tax, the imposition of a gross negligence penalty under
section 285 and the timeliness of the assessment.
[3]
At the opening of trial, counsel for the appellant stated that
the appellant was abandoning all challenges to the assessment
except for the matter of the penalty for gross negligence under
section 285, which read at the relevant time
Every person who knowingly, or under circumstances amounting
to gross negligence in the carrying out of any duty or obligation
imposed by or under this Part, makes or participates in, assents
to or acquiesces in the making of a false statement or omission
in a return, application, form, certificate, statement, invoice
or answer (in this section referred to as a "return")
made in respect of a reporting period or transaction is liable to
a penalty of the greater of $250 and 25% of the amount, if any,
by which
(a) in the case of net tax for a period,
(i) the amount of net tax of a person for the period
exceeds
(ii) the amount that would be the net tax of the person for
the period if the net tax were determined on the basis of the
information provided in the return;
(b) in the case of tax payable for a period or
transaction,
(i) the amount of tax payable by the person for the period or
transaction
exceeds
(ii) the amount that would be the tax payable by the person
for the period or transaction if the tax were determined on the
basis of the information provided in the return; and
(c) in the case of an application for rebate,
(i) the amount that would be the rebate payable to the person
if the rebate were determined on the basis of the information
provided in the return
exceeds
(ii) the amount of the rebate payable to the person.
[4]
The test is the same as that under subsection 163(2) of the
Income Tax Act, which has been the subject of a myriad of
cases. Counsel for the appellant handed in a brief of thirty
cases and I suspect that this is just the tip of the iceberg.
[5] I
need not refer to all of them. The leading cases were dealt with
in Findlay v. The Queen, 2000 DTC 6345, where
the Federal Court of Appeal adopted the reasoning of Justice
Strayer in Venne v. The Queen, 84 DTC 6247, and
of Justice Cattanach in Udell v. M.N.R.,
70 DTC 6019.
[6]
The Federal Court of Appeal at page 6349 adopted the
following reasoning of Strayer J. in Venne:
With respect to the possibility of gross negligence, I have
with some difficulty come to the conclusion that this has not
been established either. "Gross negligence" must be
taken to involve greater neglect than simply a failure to use
reasonable care. It must involve a high degree of negligence
tantamount to intentional acting, an indifference as to whether
the law is complied with or not. I do not find that high degree
of negligence in connection with the misstatements of business
income. To be sure, the plaintiff did not exercise the care of a
reasonable man and, as I have noted earlier, should have at least
reviewed his tax returns before signing them. A reasonable man in
doing so, having regard to other information available to him,
would have been led to believe that something was amiss and would
have pursued the matter further with his bookkeeper.
With respect to business income, I can more readily recognize
that effective surveillance would have been difficult for the
plaintiff and would have involved him making and reviewing
numerous computations of revenues, expenditures, assets, and
liabilities. In other words the errors in business income, small
in some years but very substantial in others, would not
necessarily have "sprung out" at a person of the
taxpayer's background and abilities. While it may have been
naive for him to trust his bookkeeper as knowing more about such
matters than he did, I do not think it was gross negligence for
them to fail to challenge the bookkeeper with respect to the
business computations. However egregious the errors committed by
the bookkeeper in this respect, it is quite conceivable that they
were not in fact noticed by the plaintiff and his neglect in not
noticing them fell short of constituting gross negligence.
[7]
The court also cited with approval the decision of Cattanach J.
in Udell to the effect that the gross negligence of a
taxpayer's accountant cannot for the purposes of penalties
imposed under subsection 56(2) [now subsection 163(2)]
of the Income Tax Act be attributed to the taxpayer.
[8]
These principles essentially are the basis upon which all of the
other 28 cases cited were decided.
[9]
If any broad principle can be deduced from the multiplicity of
cases decided under subsection 163(2) of the Income Tax
Act it is that courts are reluctant to sanction the
imposition of gross negligence penalties unless evidence of a
high degree of negligence is clearly established.
[10] In
Farm Business Consultants Inc. v. The Queen,
95 DTC 200, the following was said at
pages 205-6:
A court must be extremely cautious in sanctioning the
imposition of penalties under subsection 163(2). Conduct that
warrants reopening a statute-barred year does not automatically
justify a penalty and the routine imposition of penalties by the
Minister is to be discouraged. Conduct of the type contemplated
in paragraph 152(4)(a)(i) may in some circumstances also
be used as the basis of a penalty under subsection 163(2), which
involves the penalizing of conduct that requires a higher degree
of reprehensibility. In such a case a court must, even in
applying a civil standard of proof, scrutinize the evidence with
great care and look for a higher degree of probability than would
be expected where allegations of a less serious nature are sought
to be established.3 Moreover, where a penalty is
imposed under subsection 163(2) although a civil standard of
proof is required, if a taxpayer's conduct is consistent with
two viable and reasonable hypotheses, one justifying the penalty
and one not, the benefit of the doubt must be given to the
taxpayer and the penalty must be deleted.4 I think
that in this case the required degree of probability has been
established by the respondent, and that no hypothesis that is
inconsistent with that advanced by the respondent is sustainable
on the basis of the evidence adduced.
_______________________________________________________
3
Cf. Continental Insurance Co. v. Dalton Cartage Co.,
[1982] 1 S.C.R. 164; 131 D.L.R. (3d) 559; 25 C.P.C. 72, per
Laskin, C.J.C. at 168-171; D.L.R. 562-564; C.P.C. 75-77);
Bater v. Bater, [1950] 2 All E.R. 458 at 459; Pallan et
al. v. M.N.R., 90 DTC 1102 at 1106; W. Tatarchuk
Estate v. M.N.R., [1993] 1 C.T.C. 2440 at 2443.
4
This is not simply an extrapolation from the rule in
Hodge's Case (1838) 2 Lewin 227; 168 E.R. 1136,
applicable in criminal matters such, for example, as section 239
of the Income Tax Act where proof beyond a reasonable
doubt is required. It is merely an application of the principle
that a penalty may be imposed only where the evidence clearly
warrants it. If the evidence is consistent with both the state of
mind justifying a penalty under subsection 163(2) and the absence
thereof — I hesitate to use the words innocence or guilt in
these circumstances — it would mean that the Crown's
onus had not been satisfied.
[11] The
decision of the Tax Court of Canada was affirmed by the Federal
Court of Appeal (96 DTC 6085) which said that the court
was satisfied that the trial judge applied the proper principles
of law to the facts before him in this case which led him to
appropriate findings and ultimately to the proper decision.
[12] One other
point should be mentioned before I review the facts. Counsel for
the respondent referred to only two cases. SDC Sterling Dev.
Corp. v. Canada, [1997] G.S.T.C. 103, and Roberts v.
Canada, [1997] G.S.T.C. 58.
[13] These
cases did not deal with gross negligence. They involved an
unsuccessful challenge to the imposition of penalties under
section 280 of the Excise Tax Act on the basis that the
reliance on the appellant's accountants constituted "due
diligence" (Pillar Oilfield Projects Ltd. v. The
Queen, [1993] G.S.T.C. 49, Consolidated Cdn.
Contractors v. Canada, [1998] G.S.T.C. 91).
[14] Such
cases are of virtually no assistance in an appeal against gross
negligence penalties under section 285. Both the onus of
proof and the standard are different. In gross negligence cases,
the Crown has the onus and the standard is high, as discussed in
the cases referred to above. In due diligence cases the taxpayer
has the onus and the standard is also relatively high although
not as high as that required to establish gross negligence. It is
possibly not fair to attempt to measure the standard of proof in
the two types of case against each other because in a sense it is
an apples versus oranges comparison. However, one thing is clear:
just because a taxpayer cannot succeed in establishing a due
diligence defence does not mean that he or she should be
penalized under section 285. I should think the point is
fairly obvious.
[15] Since the
Crown had the onus in respect of the only point in issue the
respondent opened and called Mr. William Brown, an
experienced auditor, with the CCRA. He performed the audit and it
was on his recommendation that the penalty was imposed. I found
him an impressive and conscientious witness.
[16] His
recommendation for a penalty under section 285 was based in
part on work that had been done by a previous auditor. A brief
outline of the facts will suffice. 410812 Ontario Limited
("410") is owned and controlled by David Crittenden, a
lawyer who has not practised law since 1983. He is a businessman
and investor. In 1989, 410 bought a land and building at
111 Forsythe Street, Oakville, Ontario.
[17] The
property was leased by Riverside Joint Venture, of which David
Crittenden was a principal, to an arm's length tenant who
operated a restaurant. That company made payments of mortgage
principal and interest directly to the mortgagee and property
taxes directly to the municipality. In 1993 a GST audit of the
Riverside Joint Venture was conducted. GST had not been collected
on the third party payments. Revenue Canada assessed GST on these
and the assessment was paid and no objection or appeal was
filed.
[18] In 1992
the lease with the arm's length lessor came to an end and the
appellant (410) leased the property to Shark Bytes Inc. for five
years from December 1, 1992. This was not an arm's
length transaction. Clause 3 of the lease read:
3.
RENT
The Tenant shall pay during each year of the lease term as
rent, all of the expenses incurred in connection with the Demised
Premises plus the sum of $1.00 per annum and without limiting the
generality of the foregoing such expenses shall include mortgage
interest and realty taxes.
[19] Mr.
Crittenden drafted the lease.
[20] No
amounts were paid directly to the appellant. The tenant paid
mortgage principal and interest to the mortgagee, property taxes
to the municipality and insurance premiums to the insurer.
[21] No GST
was remitted on these payments.
[22] One thing
is clear beyond any doubt. The payments to the third party were
rent and they represented taxable supplies that were subject to
GST. Mr. Crittenden sought to draw a distinction between the
third party payments made under the earlier arrangement and those
made under the non-arm's length lease of December 1,
1992 on the basis that under the earlier arrangement the tenant
made the third party payments unilaterally to ensure that the
property was not lost by foreclosure or sold at a tax sale and
that the payments under the December 1, 1992 lease were
maintenance of the property within a corporate group. I cannot
accept this argument for a moment.
[23]
Nonetheless, is a penalty justified for the appellant's
failure to declare GST on the amounts paid under clause 3 of
the lease in the GST returns filed for the period May 1,
1993 to July 31, 1998? Mr. Crittenden stated that he
discussed the matter with the appellant's chartered
accountant, Mr. Jenkins, who stated that he was of the
opinion that no GST was collectible.
[24]
Mr. Crittenden also stated that he was under the impression
that no GST returns had to be filed. When the CCRA asked the
appellant to file returns the trust examiner, Mr. Sicoli,
who was doing a payroll audit, was told that 410 was only a
holding company and was receiving no rent and had no income. The
CCRA suggested, according to Mr. Crittenden, that the
appellant file nil returns. I mention in passing that whatever
Mr. Sicoli may have told Mr. Crittenden is no defence.
He was doing a payroll audit and his observations were based on
Mr. Crittenden's statement that 410 was only a holding
company with no income.
[25] Later,
amended corporate income tax returns were filed and only the
principal payments under the mortgage were included in income.
The GST returns declared nothing. Why the difference? The
accountants prepared the income tax returns, whereas
Mr. Crittenden signed and presumably filed the GST
returns.
[26] There is
a sort of rough-and-ready logic behind the inclusion in income of
only the mortgage principal payments. It is this: theoretically
all of the third party payments should have come into income and
the mortgage interest, realty taxes and insurance premiums would
have been deductible to arrive at the same net result as that
achieved by including only the mortgage principal payments. The
accountant merely telescoped the two operations by netting the
inclusions and deductions.
[27] This does
not however work in the case of GST, except to the extent that
input tax credits are available.
[28]
Mr. Brown put in evidence his very comprehensive Penalty
Recommendation Report. It was thorough and meticulous and he
concluded with a recommendation that the penalty should be
imposed. His observations have considerable merit. Essentially,
he relies on five factors:
(a)
the amounts are material;
(b)
the prior period from 1991 to 1993 had a similar failure to
declare GST on third party payments;
(c)
Mr. Crittenden is a lawyer and was familiar with the
obligation to pay GST;
(d)
the appellant, through Mr. Crittenden, was involved directly
in preparing the returns;
(e)
Mr. Crittenden was involved in the financial affairs of the
appellant and was aware, or ought to have been aware, of the
financial position of the appellant and of its GST
obligations.
[29] At the
conclusion of Mr. Brown's evidence, counsel for the
respondent indicated that he did not intend to call
Mr. Crittenden as a witness, but that he was prepared to do
so if counsel for the appellant did not.
[30]
Mr. Ackerman, counsel for the appellant, then moved for a
non-suit and argued that no admissible evidence had been adduced
to support the imposition of the penalty. His argument was that a
key part of the Crown's case was the prior audit, and the
auditor who performed that audit was not called and the portion
of Mr. Brown's report that dealt with it was hearsay. I
agree. In penalty cases I expect the Crown to follow the rules of
evidence, even though the case is in the informal procedure.
[31] I told
Mr. Ackerman that he had to make an election whether to call
evidence. If he elected not to do so I would rule immediately on
his motion. If he elected to call evidence I would reserve on his
motion until all the evidence was in. In the result he called
Mr. Crittenden. I doubt that it could be said that there was
no evidence and I would probably have ruled against the motion,
whether at the end of Mr. Brown's evidence or at the end
of Mr. Crittenden's evidence. However, the case was
ultimately argued on the question whether there was
sufficient evidence to justify a penalty.
[32] We are
seeing motions for non-suits in this court with increasing
frequency. The judges of the court have reached a consensus on
the procedure in non-suits (to the extent that it can ever be
said that 22 judges are capable of reaching a consensus on
anything) and I think it might be useful if I were to set out the
guidelines that I have developed and circulated among the members
of the court. They are of course not binding but they represent
an attempt to put the procedure in non-suits in this court in a
relatively comprehensible and organized form. In preparing the
guidelines I consulted four authorities:
1.
The Law of Evidence in Canada, Second Edition, Sopinka, Lederman
and Bryant.
2.
The Trial of An Action, Second Edition, Sopinka, Houston and
Sopinka.
3.
Cross and Tapper on Evidence, Ninth edition.
4.
Phipson on Evidence, Fourteenth Edition.
[33] There are
several preliminary observations.
(a)
The law relating to non-suits appears to be going through an
evolution.
(b)
To the extent that we can derive assistance from the experience
of or practices in other courts, it must be with respect to
civil, non-jury cases.
(c)
The procedure must be appropriate to this court. What might be
suitable in, say, a non-jury matrimonial or libel action, or a
case of professional negligence in a court in a province, might
not be suitable in a tax appeal.
(d)
There are a number of aspects of an income tax appeal in the Tax
Court of Canada that may require a different approach to
non-suits. Among the differences from other civil actions are the
following:
(i)
The existence of two procedures, informal and general. In the
former the appellants are frequently unrepresented.
(ii)
The rules of onus in an income tax appeal are a little
complicated. For example the onus on the appellant is to
"demolish" the so-called assumptions pleaded by the
respondent but the onus may shift to the Crown to establish a new
basis for upholding the assessment. Also, the Crown has the onus
in the case of penalties and in the case of opening up
statute-barred years (the latter being a shifting onus).
[34] Bearing
in mind the somewhat peculiar nature of an appeal in this court
against an assessment of tax the following guidelines seem
workable.
1.
The court should not generally entertain motions for non-suits in
the informal procedure. I say this not as a technical or legal
matter but because I do not think an unrepresented appellant
should be faced with a technical motion such as a non-suit. This
of course does not apply where the Crown has the onus of proof,
as in a penalty case.
2.
Where a party — usually the respondent — moves for a
non-suit counsel for that party should be put to an election
whether to call evidence before the court rules on the
motion.
3.
If counsel elects to call evidence the judge should reserve on
the motion until all the evidence is in. In determining whether
there is no evidence the court may of course
consider any evidence called by the party moving for the
non-suit.
4.
If counsel elects to call no evidence the court should
immediately rule on the non-suit motion.
5.
If the judge rules that there is no evidence supporting the
appellant's appeal he or she should, before dismissing the
appeal, invite argument on the question whether the assumptions
as pleaded support the assessment. If they do the judge should
dismiss the appeal. If they do not, one of the alternatives open
to the judge is to allow the appeal. If the Crown has pleaded an
alternative ground for upholding the assessment, the court should
ask whether the Crown intends to call evidence. It is not
possible to set out any hard-and-fast rules in this unusual
situation. What the court does will depend on the particular
circumstances.
6.
If the judge dismisses the motion on the basis that there is
some evidence supporting the appellant's case
two results should flow:
(i)
Counsel who brought the motion for a non-suit (usually counsel
for the respondent) should be held to his or her election and
should not, after losing the motion, be entitled to withdraw the
election and call evidence.[1]
(ii)
Counsel should then be entitled to argue that, notwithstanding
the judge's ruling that there is some evidence
supporting the appellant's case (or the case of whoever has
the onus), the evidence is insufficient to satisfy
the onus. (This is the distinction between no
evidence — a question of law for the judge — and
insufficient evidence (a question of fact)).
7.
Matters can become a little complicated where there is a split
onus as, for example, where the appellant has the onus of showing
the assessment of tax is wrong, and the Crown has the onus of
establishing a penalty, or opening up a statute-barred year or
where the Crown raises a new and alternative basis of supporting
the assessment. The question arises whether a non-suit motion
should be entertained in the middle of a trial where one party
has put in its evidence and, if that party thinks that it has
made out a prima facie case, so that the onus has shifted
to the other party. I see no reason for complicating matters
further by cluttering up the proceeding by mid-trial motions. If
one party wants to bring a motion for a non-suit that party
should be forced to elect whether to call evidence on all aspects
of the case and take his or her chances. In other words the
ordinary rule should apply. Ultimately, however, the matter is in
the discretion of the trial judge.
8.
The trial judge should never of his own motion undertake to
non-suit a party. It should only be on the motion of a party.
This was the view expressed by Rowell C.J.O. in
McKenzie v. Bergin, [1937] O.W.N. 200
(C.A.). It is inconsistent with the view expressed by
Riddell J.A. in Martin v. Canadian Pacific Railway,
[1932] O.R. 571 (C.A.). Apart from this point
Riddell J.A.'s judgment in Martin is a very good
summary of the rule that I think this court should follow.
The relevant passages in the judgments of Riddell J.A. in
Martin and Rowell C.J.O. in
McKenzie are quite succinct and it may be
worthwhile to reproduce them here.
In Martin, Riddell J.A. said at
pages 573-574:
At the close of the plaintiff's case, the trial Judge may
non-suit, proprio motu; this is so rare a proceeding that
I know of but one instance in nearly half a century of active
experience; and it cannot be said that there is any established
practice in such a case; in the only case of which I am aware the
Divisional Court of the Common Pleas Division held that the
defendant not objecting but opposing an appeal from the non-suit
was in the same position as if he had moved for the non-suit.
This, of course, is not binding upon us; and if the extremely
unlikely case should come before the present Divisional Court, it
would be disposed of untrammeled by authority.
The usual, indeed, almost universal case is a motion by the
defendant; the Judge may pursue any one of three courses.
He may, (1) allow the motion and grant the non-suit, in which
case on an appeal, the defendant must abide by the evidence given
as though it were the only evidence available, and the appeal
will be dealt with on that basis.
Or the Judge may, (2), dismiss the motion, or (3), reserve his
decision until the end of the trial; in either of these cases,
the defendant may, (a) close his case offering no evidence, in
which case he is in the same position as the defendant in the
case just mentioned; or, (b) give evidence, in which case the
matter is decided on all the evidence offered, and the defendant
on an appeal has no relief on the ground that a non-suit should
have been ordered—in other words, he has no relief if he
has himself furnished the evidence, which gives the plaintiff a
proper right of action.
These are the rules of strict practice in our Courts, but they in
no way interfere with the action of the Court "in the
exercise of its discretion."
In McKenzie, Rowell C.J.O. said at
page 201:
Possibly it would not be out of place, in view of the manner in
which this action was disposed of at the trial, to suggest
procedure which it would be desirable for Judges to follow in
dealing with the question of a non-suit and which would result in
a saving of expense to both litigants and to the Counties,
particularly in jury cases:
(1)
The trial Judge should not, of his own motion, undertake to
non-suit, but in all cases it should be left for counsel for the
defendant to move for a non-suit if he desires to do so.
(2)
Even if counsel for the defendant moves for a non-suit, it would
be wise and convenient if the trial Judge would reserve his
decision on the motion for non-suit and ask the defendant if he
desires to put in evidence. If the defendant desires to put in
evidence, the case should proceed and the jury's finding
obtained. If the learned trial Judge then decided that the
non-suit should be granted he could dismiss the action, and, if
appeal were taken, this Court would have all the facts before it,
including the assessment of damages, and if it should be of
opinion that the non-suit should not have been granted the action
could be finally disposed of.
(3)
If, on the other hand, the defendant said he did not desire to
put in any evidence but rested his case on the weakness of the
plaintiff's case, then the learned trial Judge could properly
dispose of the motion for non-suit.
9.
On pages 155-158 of The Trial of An Action there is some
discussion of non-suit motions where there are multiple
defendants. In the context of an income tax appeal where there
are two or more appellants' cases being heard together should
a non-suit motion be entertained as against one but not as
against the other(s)? Whatever theoretical justification might be
found for such a course of action I think that as a matter of
principle such a motion should be dismissed. If the court were to
allow such a motion as against one appellant and then permit the
Crown to adduce evidence against the other it is possible that
the Crown's evidence might support the case of the appellant
who had been non-suited. This would be anomalous. If the Crown
were to bring a motion to have one appellant non-suited the Crown
should be forced to elect whether it was going to call evidence
as against any of the appellants.
10.
There is some debate, discussed in Phipson at page 223
( ¶ 11-36), about the criteria to be applied in a
non-suit motion: should it be whether there is a scintilla of
evidence, in which case the motion should be denied, or should it
be whether there is any evidence on which the court can
reasonably find for the party on whom the burden of
proof rests. I am aware that Phipson is discussing the matter in
the context of a jury case where the decision is more critical
because it involves the fairly serious step of taking the case
away from the jury. Phipson favours the second approach: is there
any evidence on which the court can reasonably find
for the appellant? With respect I do not agree. If there is any
evidence supporting the appellant's case I think the motion
should be denied. It is premature at the close of the
appellant's case to consider questions whether the evidence
adduced reasonably supports a finding for the
appellant.
[35] It is
hoped that these guidelines may be of some assistance where
non-suit motions are brought in this court.
[36] Reverting
to the case of the penalty imposed under section 285 against
the appellant there is much merit in Mr. Brown's
position that Mr. Crittenden knew or ought to have known
that GST was payable on the third party payments and that failure
to declare GST was grossly negligent. That hypothesis is
reasonable and viable but the evidence is equally consistent with
another viable and reasonable hypothesis, that
Mr. Crittenden relied — perhaps wrong-headedly or
negligently — on his accountant's opinion that no GST
was payable or perhaps he formed an erroneous view of the law. I
think Mr. Crittenden was negligent but the evidence is
consistent with an hypothesis that does not entail gross
negligence as described in the cases cited at the beginning of
these reasons. Accordingly the appellant is entitled to the
benefit of the doubt.
[37] The
appeal is allowed and the assessment is referred back to the
Minister of National Revenue for reconsideration and reassessment
to delete the penalty imposed under section 285.
[38] I do not
however think that under subsection 18.3009(1) of the Tax
Court of Canada Act I can award costs.
Signed at Ottawa, Canada, this 9th day of April 2002.
"D.G.H. Bowman"
A.C.J.
COURT FILE
NO.:
2001-3861(GST)I
STYLE OF
CAUSE:
Between 410812 Ontario Limited and
Her Majesty The Queen
PLACE OF
HEARING:
Toronto, Ontario
DATE OF
HEARING:
March 20, 2002
REASONS FOR JUDGMENT BY: The
Honourable D.G.H. Bowman
Associate Chief Judge
DATE OF
JUDGMENT:
April 9, 2002
APPEARANCES:
Counsel for the Appellant: Robert G. Ackerman, Esq.
Counsel for the
Respondent:
Bobby Sood, Esq.
COUNSEL OF RECORD:
For the
Appellant:
Name:
Robert G. Ackerman, Esq.
Firm:
Ackerman Law Office
Toronto, Ontario
For the
Respondent:
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
2001-3861(GST)I
BETWEEN:
410812 ONTARIO LIMITED,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on March 20, 2002 at Toronto,
Ontario, by
The Honourable D.G.H. Bowman
Associate Chief Judge
Appearances
Counsel for the
Appellant: Robert
G. Ackerman, Esq.
Counsel for the Respondent: Bobby
Sood, Esq.
JUDGMENT
It is
ordered that the appeal from the assessment made under the
Excise Tax Act, notice of which is dated July 26,
2001 and bears number 08GP-117220723 be allowed without costs and
the assessment be referred back to the Minister of National
Revenue for reconsideration and reassessment to delete the
penalty imposed under section 285 of the Act.
Signed at Ottawa, Canada, this 9th day of April 2002.
A.C.J.
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