Bowman
J.T.C.C.:—The
appellant
appeals
from
an
assessment
for
the
taxation
year
1991
whereby
the
Minister
of
National
Revenue
assessed
a
penalty
for
the
late
filing
of
an
information
return.
The
notice
of
assessment
states
that
the
penalty
was
imposed
under
paragraph
162(7)(a)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148
(am.
S.C.
1970-71-72,
c.
63)
(the
"Act")
whereas
the
notification
of
confirmation
states
that
the
penalty
was
imposed
under
subsection
162(1).
The
obligation
for
an
estate
or
trust
to
file
an
income
tax
return
is
found
in
paragraph
150(1)(c),
and
the
obligation
to
file
an
information
return
is
found
in
section
204
of
the
Income
Tax
Regulations.
In
both
cases
the
return
must
be
filed
within
90
days
from
the
end
of
the
taxation
year.
The
penalty
for
late
filing
of
an
income
tax
return
is
imposed
under
subsection
162(1)
and
the
penalty
for
failing
to
file
an
information
return
is
imposed
under
paragraph
162(7)(a).
I
shall
assume
that
the
assessment
is
based
upon
paragraph
162(7)(a)
and
that
the
reference
in
the
notification
of
confirmation
is
in
error.
The
facts
are
as
follows:
Mr.
Milos
Novotny
died
on
July
31,
1989.
In
his
will
he
appointed
a
lawyer,
Mr.
Mao
Chambers,
the
executor
of
his
will
and
gave
to
him
“the
seizin
of
all
the
property
of
my
estate,
moveable
and
immoveable.”
He
bequeathed
to
McMaster
University
all
of
his
books,
manuscripts
and
lecture
notes.
He
left
the
office
furniture
and
pictures
in
his
house
to
Champlain
Regional
College
and
certain
other
personal
items
such
as
furniture
and
clothing
to
the
Salvation
Army.
The
residue
of
his
estate
was
left
to
McMaster
University
to
be
held
in
trust
for
the
purpose
of
providing
financial
rewards
to
students
in
mathematics.
On
August
9,
1990
the
Ministry
of
Revenue
of
Quebec
authorized
the
distribution
of
about
three-quarters
of
the
estate.
The
distribution
of
the
remainder
was
stated
to
require
a
further
authorization.
Mr.
Chambers
filed
an
information
return
for
the
period
ended
June
30,
1990
on,
it
appears,
a
timely
basis
but
he
did
not
file
a
return
for
the
period
ended
June
30,
1991
until
October
30,
1992.
Subsections
204(1)
and
(2)
of
the
Regulations
read
as
follows:
204(1)
Every
person
having
the
control
of,
or
receiving
income,
gains
or
profits
in
a
fiduciary
capacity,
or
in
a
capacity
analogous
to
a
fiduciary
capacity,
shall
make
a
return
in
prescribed
form
in
respect
thereof.
204(2)
The
return
required
under
this
section
shall
be
filed
within
90
days
from
the
end
of
the
taxation
year
and
shall
be
in
respect
of
the
taxation
year.
Accordingly
the
information
return
was
required
to
be
filed
on
or
before
September
29,
1991.
Mr.
Chambers’
position
in
his
notice
of
appeal
was
that
no
trust
was
created
by
the
death
of
Milos
Novotny.
He
modified
this
position
somewhat
at
trial
and
argued
that
even
if
there
was
a
trust
during
the
period
from
July
31,
1989
to
August
1,1990
his
obligations
as
executor
came
to
an
end
one
year
and
one
day
after
the
deceased's
death,
by
reason
of
article
918
of
the
Civil
Code
of
Quebec,
as
it
read
in
1991.
Article
918
provided
as
follows:
Testamentary
executors,
for
the
purposes
of
the
execution
of
the
will,
are
seized
as
legal
depositaries
of
the
moveable
property
of
the
succession,
and
may
claim
possession
of
it
even
against
the
heir
or
legatee.
This
seizin
lasts
for
a
year
and
a
day
reckoning
from
the
death
of
the
testator,
or
from
the
time
when
the
executor
was
no
longer
prevented
from
taking
possession.
When
his
duties
are
at
an
end,
the
testamentary
executor
must
render
an
account
to
the
heir
or
legatee
who
receives
the
succession,
and
pay
him
over
the
balance
remaining
in
his
hands.
If,
under
the
will,
his
duties
are
extended
beyond
the
year
and
a
day,
he
shall,
upon
the
request
of
the
heir
or
legatee
or
of
one
of
the
heirs
or
legatees,
produce
from
time
to
time
a
summary
account
of
his
management
and
of
the
administration
of
the
properties
of
the
succession
if
he
is
charged
therewith,
such
account
to
be
furnished
without
any
judicial
formality
or
costs.
Mr.
Chambers
argued
that
the
law
of
Quebec
does
not
recognize
the
concept
of
trust
as
it
is
known
in
England
and
the
common
law
provinces
of
Canada
and
that
he
was
a
testamentary
executor
seized
of
the
property
as
legal
depository
for
a
year
and
a
day
after
the
deceased’s
death.
He
contended
further
that
that
status
terminated
on
August
1,
1990
and
his
status
thereafter
was
that
of
a
debtor
of
the
beneficiaries.
Therefore,
he
argued,
after
the
passage
of
one
year
and
a
day
from
the
date
of
death
he
was
not
acting
in
any
capacity
that
required
him
to
file
a
return.
The
treatment
or
recognition
under
the
law
of
Quebec
of
the
English
concept
of
trust
has
been
the
subject
of
much
learned
commentary
by
academics
and
judges.
(See,
for
example,
D.W.M.
Waters,
The
Law
of
Trusts
in
Canada,
2nd
edition,
chapter
28.)
Interesting
as
this
question
may
be,
it
is
not
germane
to
the
issue
here.
Whatever
the
estate
of
Mr.
Novotny
might
be
called
for
the
purposes
of
the
Civil
Code,
it
is
certainly
a
trust
or
estate
for
the
purposes
of
the
Income
Tax
Act.
Subsection
104(1)
of
the
Income
Tax
Act
reads
as
follows:
104(1)
In
this
Act,
a
reference
to
a
trust
or
estate
(in
this
subdivision
referred
to
as
a
"trust")
shall
be
read
as
a
reference
to
the
trustee
or
the
executor,
administrator,
heir
or
other
legal
representative
having
ownership
or
control
of
thetrust
property.
Moreover,
even
following
the
expiry
of
the
year
and
a
day
mentioned
in
article
918
of
the
Civil
Code,
Mr.
Chambers
continued
as
a
testamentary
executor
having
a
legal
obligation
to
distribute
the
property
to
the
beneficiaries
in
accordance
with
the
will
and
the
applicable
law
and
as
such
he
acted
in
a
fiduciary
capacity,
or
at
the
very
least,
in
a
capacity
"analogous
to
a
fiduciary
capacity”,
as
those
words
are
used
in
subsection
204(1)
of
the
Regulations.
Accordingly,
he
was
obliged
to
file
an
information
return
under
section
204
of
the
Regulations.
Since
he
did
not
do
so
the
penalty
was
properly
exigible.
The
appeal
is
therefore
dismissed.
Appeal
dismissed.
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