Grein v. Canada, 2009 FCA 358

Date: 20091208

Docket: A-615-08

Citation: 2009 FCA 358

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GIGI GREIN

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Montréal, Quebec, on December 3, 2009.

Judgment delivered at Ottawa, Ontario, on December 8, 2009.

REASONS FOR JUDGMENT BY:                                                                   LÉTOURNEAU J.A.

CONCURRED IN BY:                                                                                                  NADON J.A.

        PELLETIER J.A.

Date: 20091208

Docket: A-615-08

Citation: 2009 FCA 358

CORAM:       LÉTOURNEAU J.A.

                        NADON J.A.

                        PELLETIER J.A.

BETWEEN:

GIGI GREIN

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

LÉTOURNEAU J.A.

[1]               The appellant had her income reassessed for the years 2002, 2003 and 2004. As a result of the audit, her self-employed income was increased by the amounts of $14,748 for 2002, $10,118 for 2003 and $12,364 for 2004. Penalties in the range of $600 to $700 were imposed for each year.

[2]               Because the appellant had no internal control in place for her business and because some jobs performed were never actually invoiced and were paid in cash, the auditor used an indirect method of auditing. He proceeded by way of net worth assessment on the basis that the appellant’s revenue was too low and did not correspond with her cost of living.

[3]               Before the Tax Court of Canada, the appellant had the burden of showing on a balance of probabilities that the amount of income determined by the Minister was erroneous.

[4]               Essentially, Angers T.C.J. (judge) was called upon to make determinations of fact and credibility findings. In the absence of overriding and palpable errors, our Court has no authority and power to overturn these determinations and findings: see Housen v. Nikolaisen, [2002] 2 S.C.R. 235. In addition, there are issues of credibility which clearly are beyond our reach.

[5]               Notwithstanding her efforts, the appellant who was self-represented has not been able to establish that the judge erred in finding that:

a)         the auditor was justified in using an indirect audit method and doing a net worth assessment;

b)         the internal control for her business was weak;

c)         clients were not provided with invoices;

d)         there were inconsistencies between the statements made by the appellant’s father to the auditor and the appellant’s version given at trial;

e)         the appellant’s explanations for her low food costs and automobile costs were unacceptable; and

f)          there were contradictions and inconsistencies regarding an alleged loan that she would have made to her father and the payments allegedly made to her by her father in repayment of the loan.

[6]               There was evidence supporting the judge’s conclusions that the appellant had made false statements in her tax returns in failing to declare income and, therefore, that the imposition of penalties by the respondent was justified.

[7]               For these reasons, I would dismiss the appeal with costs.

“Gilles Létourneau”

“I agree

            M. Nadon J.A.”

“I agree

            J.D. Denis Pelletier J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                         A-615-08

STYLE OF CAUSE:                                         GIGI GREIN v. HER MAJESTY THE

                                                                           QUEEN

PLACE OF HEARING:                                   Montréal, Quebec

DATE OF HEARING:                                     December 3, 2009

REASONS FOR JUDGMENT BY:                LÉTOURNEAU J.A.

CONCURRED IN BY:                                    NADON J.A.

                                                                           PELLETIER J.A.

DATED:                                                            December 8, 2009

APPEARANCES:

SOLICITORS OF RECORD: