Roland
St-Onge:—This
appeal
is
from
an
assessment
of
a
penalty
for
late
filing
of
the
appellant’s
income
tax
return
for
the
taxation
year
1970.
The
undisputed
facts
show
that
the
appellant
was
a
client
of
Mr
Donald
G
Clandinin,
Accountant;
that
the
latter
filed
on
behalf
of
the
appellant
a
1970
T1
General
tax
return
form
marked
“Temporary
Return”
which
was
not
signed
and
contained
no
information
other
than
an
income
“estimate”
of
$700
as
net
farming
income;
that
on
April
30,
1971
the
said
temporary
return
was
received
by
the
respondent
at
the
District
Taxation
Office,
Saskatoon,
Saskatchewan;
that
on
May
18,
1971
a
further
1970
T1
General
individual
income
tax
form
in
the
name
of
the
appellant
was
provided
to
the
respondent
by
the
said
Mr
Clandinin
containing
all
the
prescribed
information.
The
respondent
contended
that
the
initial
1970
T1
General
individual
income
tax
form
provided
to
him
on
April
30,
1971
did
not
constitute
a
return
of
the
income
for
the
appellant’s
1970
taxation
year
in
prescribed
form
and
containing
the
prescribed
information
as
required
by
the
provisions
of
subsection
44(1)
of
the
Income
Tax
Act;
that
the
second
return
did
constitute
a
return
of
the
income
of
the
appellant
for
his
1970
taxation
year
in
prescribed
form
but
was
received
by
the
respondent
after
April
30,
1971.
The
labelling
of
a
tax
return
by
adding
the
words
“Temporary
Return”
is
a
way
of
contravening
the
law
which
requires
that
a
tax
return
in
the
case
of
an
individual
should
be
filed
on
or
before
April
30.
Subsection
55(1)
states
that
“Every
person
who
has
failed
to
make
a
return
as
and
when
required
by
subsection
(1)
of
section
44
is
liable
to
a
penalty
.
.
.”’.
Subsection
44(1)
requires
that
a
taxpayer
(an
individual
as
is
the
case
here)
make
his
return
“on
or
before
April
30”.
There
is
no
mention
made
of
anything
in
the
nature
of
a
“temporary
return”
in
the
Income
Tax
Act,
and
the
fact
that
the
appellant
used
a
prescribed
form
mentioning
therein
his
name
and
address,
an
exemption,
and
an
estimated
income
(which
was
not
intended
to
even
show
the
approximate
income
of
the
taxpayer)
is
not
sufficient
to
constitute
a
return
within
the
meaning
of
subsection
44(1).
It
is
true
that
the
Minister
could
have
assessed
a
penalty
under
the
provisions
of
subsection
55(3)
or
56(2)
but
this
does
not
prevent
him
from
using
a
less
severe
section
against
the
appellant,
and
the
fact
that
in
previous
years
the
accountant
was
able
to
get
by
with
such
a
procedure
as
the
filing
of
a
“temporary
return”
does
not
prevent
the
Minister
from
putting
an
end
to
this
practice
because
he
is
not
bound
by
the
laches
of
his
servant
(William
Berrian
Salter
v
MNR,
6
Tax
ABC
193;
(1952),
6
DTC
148).
By
an
agreement
between
the
parties
the
reasons
for
judgment
in
this
case
will
also
apply
in
the
case
of
Elmer
T
Carlson.
For
the
above
reasons
the
appeal
is
dismissed.
Appeals
dismissed.
Email this Content