Section 163

Subsection 163(1) - Repeated failures


Morrison v. Canada (Attorney General), 2018 FC 141

no relief where taxpayer could not explain not noticing missing T4

The taxpayer's accountant inexplicably failed to include a T4 for $47,770 in the taxpayer’s return. In confirming that CRA’s decision to deny penalty relief was reasonable, Campbell J indicated (para. 9) that CRA had appropriately focused on the taxpayer’s “responsibility to exercise care to ensure that all income was reported, and to supply evidence that he was prevented from doing so.”

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) s. 163(1) penalty relief denial was reasonable where taxpayer could have reviewed his return for missing employment income 183

Sturgess v. The Queen, 83 DTC 5434, [1984] CTC 1, [1984] CTC 666 (FCTD), varied at 84 DTC 6525)

"It is clear that 'to evade' in subsection 163(1) imports a notion of never paying the tax and not of merely putting off payment temporarily." The plaintiff's explanation that delays of up to 3 years in filing returns were due to dilatoriness, the distractions of a busy (70-hour week) medical practice and poor record keeping was rejected, and it was concluded that he would never have filed a return if he had not received a demand to do so. However the base upon which the 50% penalty was calculated was reduced by the amount of an instalment payment, because there can be no evasion of taxes to the extent that they are actually paid.

The Queen v. Pongratz, 82 DTC 6200, [1982] CTC 259 (FCA)

Deliberately filing tax returns late, without more, is insufficient to come within s. 163(1). The result of the contrary interpretation "would be to produce arbitrary rulings by departmental officials as to what constitutes sufficient delay to warrant the imposition of the very substantial penalty required by subsection 163(1)".

Since s. 163(1) imposes penalties (albeit civil penalties, unlike the criminal penalties imposed by the companion s. 239(1)(d)) it is to be construed strictly against the taxing authority.

See Also

Polubiec v. The Queen, 2019 TCC 146

unreasonable to rely on tax advice of an investment rep

The taxpayer was now retired, but had run his own investment banking business. In his 2007, 2008, 2010 and 2011 returns, had failed to report around 15 items of dividend or other investment income (some of them, somewhat over $10,000), a failure which he claimed resulted from a failure of an investment dealer (“BMONB”) to send him T5 or other reporting slips for those items (although such forms had been received by CRA). In addition, in his 2014 return he had not reported approximately $700,000 which he had withdrawn from his RRSP. He claimed that he had been advised by a BMONB employee that reporting this amount was not required as it had been subject to 30% withholding on such withdrawal.

Sommerfeldt J found that the taxpayer had failed to establish a due diligence defence for any of the above failures, so that it was unnecessary to determine which of these failures were ones for which the taxpayer needed to establish due diligence. Respecting the failures to report investment income, he had not established that he failed to receive the T5 etc. reporting slips (he had referenced email correspondence with BMONB but had not called any BMONB witness) and, given previous assessments under s. 163(1), he should have been alerted to carefully review his return in this regard even if there were reporting slip failures. Respecting, the failure to report the RRSP withdrawal, a reasonable person would have inquired of a tax advisor rather than relying on an investment representative.

However, he went on to provide an obiter invitation to the Minister to reduce the s. 163(1) penalty, noting the magnitude of the penalty in relation to the taxpayer’s current means, and further noting (at para. 51):

[I]n other cases decided by the courts in respect of subsection 163(1) of the ITA, it has been stated that:

a) the penalty imposed by subsection 163(1) can be harsh, particularly where source deductions have been withheld and remitted in respect of the unreported income;

b) the penalty imposed by subsection 163(1) can be disproportionate in nature;

c) the severity of the penalty can be inappropriate and unforeseen;

d) the result obtained under subsection 163(1) can be counterintuitive;

e) the penalty under subsection 163(1) can be imposed even where the failure to report income was innocent; and

f) the scope of the due-diligence defence is quite limited, as it does not apply to unreasonable mistakes of fact made in good faith, to mistakes of law made in good faith, or to reasonable mistakes of law

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) relief suggested based on harshness of s. 163(1) penalty 250

Chiasson v. The Queen, 2014 DTC 1139 [at 3374], 2014 TCC 158 (Informal Procedure)

due diligence defence required for second, rather than either, failure

In finding that a taxpayer was not duly diligent in failing to review her return and spot an income omission of over $70,000, D'Aurray J noted that the Tax Court had been divided in its approach to s. 163(1) penalties. She stated (at para. 37):

One approach is that the due diligence defence applies to either one or the other of the first or second failure to report, whereas the second approach is that the due diligence defence will only apply to the second failure. I agree with the second approach since it is the second failure that gives rise to the imposition of a penalty and not the first, and the penalty is calculated on the amount involved in the second failure.

Galachiuk v. The Queen, 2014 DTC 1153 [at 3494], 2014 TCC 188

due diligence is available for the first relevant year, not only the second

The taxpayer failed to report $683 of investment income in his 2008 return (representing less than 0.1% of his taxable income and corresponding to a T3 slip which he had not received due to a change in address), and $436,890 of income in his 2009 return (representing a portion of payments out of his pension plans which had been transferred to his personal bank account rather than into his RRSP and LIRA). The Minister's reassessment of 2009 included a s. 163(1) penalty.

Graham J found that there was a due diligence defence for a s. 163(1) penalty if the taxpayer established due diligence in either of the two years, so that it was not necessary for the taxpayer to establish due diligence for the year in relation to whose income the penalty was assessed (here, 2009). The taxpayer's (ultimately misplaced) reliance on Canada Post's mail-forwarding system in preparing his 2008 return was reasonable in the circumstances, so that his appeal was allowed.

However, were this issue relevant, the taxpayer would not have established due diligence for 2009. Although he in fact believed that an employer could only issue one T4A slip for each employee (whereas here there was a misplaced second T4A for 70% of the amounts in question), it was not reasonable for him to rely on the completeness of the first T4A given the materiality of the total amount and given detailed documents he had previously received from his employer listing the appropriate amounts and their proper tax reporting.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Onus prima facie proof of due diligence shifts the onus to the Minister 173

Strimaitis v. The Queen, 2013 DTC 1220 [at 1221], 2013 TCC 274 (Informal Procedure)

failure to review return or T4 slips

The taxpayer failed to report some employment income in his 2008 to 2010 taxation years, and was assessed a penalty of $5,570 for his failure to report the bulk of his employment income for 2010. Bédard J upheld s. 163(1) penalties, finding that the taxpayer was not duly diligent. The taxpayer had failed to open the envelopes containing his T4 slips and had not reviewed the tax return prepared by his accountant.

Morgan v. The Queen, 2013 TCC 232

transfer between two tax-exempt vehicles leading to unanticipated income

The taxpayer withdrew funds from his employer's pension plan, $143,510 of which were paid to him directly, and $36,102 of which were transferred to an RRSP of which the taxpayer's spouse was an annuitant. Both withdrawals were taxable income, which the taxpayer failed to report in his return. After finding that s. 163(1) applied on its face to impose a penalty of 10% of the unreported amounts notwithstanding the harshness of the combined federal and provincial penalty of 20%, Woods J proceeded to consider due diligence: "Did Mr. Morgan take all reasonable measures to prevent the failure to report... ?" (Para. 30.)

This defence was unavailable in respect of the $143,510 payment, as the taxpayer had received a T4A for this amount, and a purported assurance from the taxpayer's bank that the taxpayer's tax "would be taken care of" was not a satisfactory explanation (paras. 32-33).

However, the defence was available in respect of the $36,102 transferred to the RRSP. Woods J stated (at paras. 35, 37):

In this case no source deductions were taken and it appears that a T4A may not have been issued. ...

[The funds] came from one tax-exempt vehicle to another and there was no indication that Mr. Morgan was advised that this amount would be taxable at the time of transfer. If this is a generous interpretation of the facts in Mr. Morgan's favour, the circumstances as a whole justify that result in my view.

Jack v. The Queen, 2013 DTC 1041 [at 205], 2013 TCC 1 (Informal Procedure)

reliance on tax preparer - not diligent - magnitude of omission

Rip CJ supported the Minister's assessment of penalties for her failure to report the income from her employment at the University of Alberta. She could not make out a due diligence defence for relying on Money Mart to prepare her taxes. Rip CJ stated (at para. 18):

The failure to report income of $60,000 in 2009 is quite serious... . Ms. Jack relied wholly on Money Mart to prepare the tax returns. She did not make even a cursory review of the information on the return, notwithstanding her previous difficulties [i.e. reporting $101,446.79 of income in 2008 when it was in fact $126,000]. Whether she even verified that she gave Money Mart all necessary forms, including the T4 form from the University of Alberta, could not be confirmed.

Tacilauskas v. The Queen, 2012 DTC 1233 [at 3643], 2012 TCC 288 (Informal Procedure)

reliance on accountant - not diligent - magnitude of omission

The taxpayer reported $269,338 of income in his 2008 return, $169,420 of which was dividend income, and $184,537 in 2009, none of which was dividend income. He was assessed penalties under s. 163(1) for unreported dividend income of $31,250 in 2008 and $130,500 in 2009. The taxpayer argued that he had a due diligence defence because his returns were prepared by an accountant, who was a different accountant than the one for the two corporations that had paid the dividends, and who had failed to prepare the appropriate paperwork. Woods J. stated (at para. 15):

In my view, Mr. Tacilauskas did not take sufficient care in either the 2008 or 2009 tax returns to prevent the omissions from income. The dividends were large amounts, and Mr. Tacilauskas had a responsibility to take appropriate steps to ensure that they were reported. It was not enough to assume that an accountant would take care of it.

Chendrean v. The Queen, 2012 DTC1188 [at 3482], 2012 TCC 205 (Informal Procedure)

lack of familiarity with Canadian tax - not diligent - magnitude of omission

The taxpayer's lack of familiarity with Canada's tax system could not by itself support a due diligence defence against s. 163(1) penalties. The fact that he had received two T4s for the second year in question, and had included the full amount for the first T4 in his income, also was not the basis for a due diligence defence, given the materiality of income omitted from his reported income as reflected on the second T4.

Knight v. The Queen, 2012 DTC 1144 [at 3300], 2012 TCC 118 (Informal Procedure)

penalties would have been less for more blameworthy conduct

Jorré J. found that the taxpayer, having no reasonable excuse for his failure to report over $40,000 in salary and severance pay, being nearly half his income for the year, was liable under s. 220(3.1) of the ITA for a penalty of 10% of the unreported income. Although technically outside the Court's jurisdiction, Jorré J. found it likely that the taxpayer was also liable for a further 10% penalty under British Columbia's Income Tax Act. The federal and provincial penalties totaled $8175. However, taxes had already been withheld from the taxpayer's unreported income. The federal and provincial treasury were, at the time of reassessment, out of pocket only $3,874, including interest.

Jorré J. recommended that the taxpayer apply for discretionary relief of penalties, and that his application be treated leniently, given that the taxpayer's penalties were over 200% of the amount of omitted tax. In other words, the taxpayer's penalties would have been considerably lower if his conduct had been more blameworthy - 50% of the omitted amount if there had been gross negligence, and between 50% and 200% if the taxpayer were charged on summary conviction.

Franck v. The Queen, 2011 DTC 1142 [at 768], 2011 TCC 179 (Informal Procedure)

diligent - unsophisticated taxpayer and complex situation
see also Paquette v. The Queen, 2011 DTC 1208 [at 1225], 2011 TCC 208 (Informal Procedure)]

The taxpayer, a chef with a high school diploma, failed to include in his return the T4 slip from one of his four employment sources. Hogan J. found that the taxpayer had a due diligence defence, given his inexperience in the workplace, and given that H&R Block, who he hired to assist in his return, had not advised him to seek the missing T4 slip.

Hogan J. reviewed several s. 163(1) due diligence cases and noted (at para. 9) that the key distinguishing factor is the taxpayer's familiarity with the tax system; the less the taxpayer's experience, and the more complex the income scenario, the stronger the defence.

Thompson v. The Queen, 2010 DTC 1259 [at 3815], 2010 TCC 381 (Informal Procedure)

13% less investment income from last year was no reason to suspect advisor had made mistake

After being reassessed for unreported investment income of $868 in 2006, the taxpayer requested her advisor at TD Waterhouse to ensure that she received the relevant T5 slips for 2007. In April 2008 the advisor's assistant confirmed by email that the T5 slips that the taxpayer had received for 2007 matched up with the amounts for her account when, in fact, approximately $20,000 of investment income was not included. Although the investment income included by the taxpayer in her 2007 return was 13% lower than for 2006, she testified that she had assumed this decrease was because of market performance. Webb J. found at para. 12 that the taxpayer had been duly diligent: it was reasonable in the circumstances for the taxpayer to assume that she had received all the slips, and thus had reported all her investment income.

Alcala v. The Queen, 2010 DTC 1147 [at 3277], 2010 TCC 198 (Informal Procedure)

penalty inequitable where it exceeds prior unreported amount

The taxpayer failed to report nearly $1,800 in income for 2006, but she had reason to believe her employer had made source deductions in respect of that income. Accordingly, she established a due diligence defence and was not liable under s. 163(1) for a 10% penalty in respect of roughly $38,000 of unreported income in 2007. In so finding, Little J. remarked at para. 13 that the equities of the case were in the taxpayer's favour because the 10% penalty for the 2007 amount, roughly $3800, was over twice the unreported amount in 2006 that gave rise to the penalty.

Cooper v. The Queen, 2010 TCC 403, 2010 DTC 1277 [at 3934] (Informal Procedure)

The taxpayer switched from one accounting firm to another, and ensured that the old one had faxed her information to the new one. Webb J. found that the taxpayer's mistaken belief that the new firm had included the faxed information in her tax return was reasonable. The taxpayer therefore established her due diligence defence as set out in Saunders, and thus avoided penalty under s. 163(1).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 82 - Subsection 82(1) - Paragraph 82(1)(a) gross-up effect on penalty 33

Iszcenko v. The Queen, 2009 DTC 794, 2009 TCC 229 (Informal Procedure)

The taxpayer failed to report investment income of $278 in 2003, and dividend income received in 2006 of $32,055 from a private corporation. In finding that s. 163(1) did not apply to the 2006 dividend income, Hogan, J. concluded that the taxpayer had not "failed" to include the dividend income in 2006 as she had asked her father-in-law whether there were any tax forms required in order to report the transaction (with him responding negatively) and she had believed the amount received was a non-taxable capital receipt.

Dunlop v. The Queen, 2009 DTC 650, 2009 TCC 177 (Informal Procedure)

In the first taxation year, the taxpayer did not report income from part-time employment because he had not received a T4 slip (due to a change of address) and, in the second taxation year, he did not receive a T4 slip until around the time of the reassessment of that taxation year and, in his return for that year in the line for employment income, stated "T4 missing from Bulk Barn - will amend when received". In these circumstances and in light of statements in the 2006 Tax Guide of CRA, which did not instruct the taxpayer to include his estimate of employment income in circumstances where he did not have a T4, a due diligence defence was established.

Saunders v. The Queen, 2006 DTC 2267, 2006 TCC 51 (Informal Procedure)

After noting that the penalty in s. 163(1) was one of strict liability, so that it could be vacated if the taxpayer established due diligence, Woods J. went on to find that the taxpayer had not established due diligence in this case as she had not carefully reviewed the income tax return before she submitted it.

Maltais v. The Queen, 91 DTC 1385 (TCC)

The taxpayer failed to include in his income the amount of withdrawals from his RRSP for which he had not received a T4RSP form at the time of filing his personal returns. Although it was "not his intention to evade the payment of income tax", s. 163(1) in its post-1988 form created an offence of "strict liability" (albeit, not absolute liability), with the result that the taxpayer was liable for the penalty given that he had failed to establish due diligence on his part.

Administrative Policy

May 2016 Alberta CPA Roundtable, Q.4

no penalty relief for pre-2015 years based on the more lenient 2015 calculation

The amended version of s. 163(1) imposes penalties for the 2015 and subsequent taxation years in accordance with a more favourable formula than previously. CRA will not exercise its discretion under s. 220(3.1) to reduce penalties assessed for the 2014 and prior taxation years to this more favourable basis, and instead will only apply its usual criteria for penalty relief under s. 220(3.1).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) s. 163(1) penalties for 2014 and prior will not be reduced to reflect the more favourable post-2014 penalty calculation 139

May 2013 ICAA Roundtable, Q. 4 (reported in April 2014 Member Advisory)

submission at Appeals stage/no partial waiver

How often would CRA consider it "just and equitable" to waive a portion of the S 163(1) penalty such that the taxpayer's penalty does not exceed 50% of the benefits which the omission would obtain, the level set by the S 163(2) penalty? CRA responded:

The CRA does not routinely afford taxpayers the opportunity to make submissions on due diligence before a subsection 163(1) penalty is assessed. However, at the objection stage, CRA Appeals will consider…a due diligence representation. Consideration will not be given to waive a portion of the penalty as either the entire amount or no amount will be waived. We will continue to apply a subsection 163(2) penalty where there is gross negligence, regardless of the quantum. Where a 163(2) penalty is applied, no 163(1) penalty is applicable.

30 October 2012 Ontario CTF Roundtable, 2012-0462951C6 - Ontario CTF - Penalty Relief

The waiving of partial interest within the 10 year limitation period is part of [Voluntary Disclosure Program] policy and is applied to all disclosures that are considered valid by the CRA as a means of encouraging disclosures for older years.

30 October 2012 Ontario CTF Roundtable, 2012-0462921C6 - Ontario CTF - 163(1) Penalty

CRA answered several questions about s. 163(1):

  • A taxpayer who does not file a return cannot be subject to s. 163(1) penalties for the relevant taxation year.
  • The potential of s. 220(3.1) penalties to drastically and unfairly exceed s. 163 penalties (discussed in Knight, for example) has been brought to the Department of Finance's attention several times.
  • "The CRA does not routinely afford taxpayers the opportunity to make submissions on due diligence before a section 163(1) penalty is assessed." Such submissions will typically be considered at the objections stage.

3 December 2009 Internal T.I. 2009-0344951I7 F - Pénalité imposée en vertu du paragraphe 163(1)

after 1st assessing Year 2, and 2nd assessing Year 1, for undeclared income (plus s. 163(2) penalty for Year 1), s. 163(1) penalty assessable for Year 2

Mr. X was reassessed in December 2005 to add unreported income for his 2004 year and then, six month later, following an audit, was reassessed for failure to report income in his 2002 return together with a s. 163(2) penalty. Can a s. 163(1) penalty now be assessed for his 2004 year (assuming no statute-barring issues)? The Directorate responded:

[Y]ou had already established in December 2005 that Mr. X had not declared an amount in his 2004 return (the "first criterion at issue "). You also established in June 2006 that Mr. X failed to report an amount in 2002, one of the three taxation years preceding 2004 (the "second criterion at issue"). The fact that the first criterion at issue was satisfied before the second criterion at issue does not preclude the application of subsection 163(1) in your situation. Accordingly, Mr. X would be subject to a penalty pursuant to subsection 163(1) for his 2004 taxation year … .

25 June 2009 Internal T.I. 2009-0328171I7 F - Pénalité pour omission - 163(1)

s. 163(1) cannot apply where the previous year’s failure was in claiming bogus expenses rather than failing to report revenues

An individual claimed fictitious expenses in Year 1 and was assessed a s. 163(2) penalty. In Year 2 the individual failed to report income. Could this second failure ground a s. 163(1) penalty? The Directorate referred to the statement in the Explanatory Notes:

This penalty will typically apply to the suppression of amounts that are included in determining net income, but will not normally apply to understatements of income attributable to errors in the characterization of income or in its computation if all amounts required to be included in computing income are reported.

The Directorate then stated:

Previously, the Income Tax Rulings Directorate had expressed the view that the penalty under subsection 163(1) should be calculated on the basis of the gross amount that should have been included in computing a person's income for a particular taxation year and not on the net amount (i.e., the amount that has not been included in computing income net of any deduction that is allocable to that amount).

Consequently, where a person claims unjustified expenses in respect of a particular amount of income, we do not believe that the penalty under subsection 163(1) can apply since it is not in those circumstances a failure to report an amount that should have been included in computing income for a particular year.


The penalty under s. 163(1) is based on the gross rather than the net amount of unreported income. However, a penalty under s. 163(1) will not be assessed in respect of an overstatement of expenses or an incorrect characterization of an amount for income tax purposes.

3 May 1990 T.I. (October 1990 Access Letter, ¶1482)

The fact that the taxpayer failed to declare certain amounts on the basis of a decision of the Federal Court, Trial Division which subsequently was quashed by the Court of Appeal would not preclude a penalty under s. 163(1).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) 31

Subsection 163(2) - False statements or omissions


Deyab v. Canada, 2020 FCA 222

although the taxpayer had been negligent, conduct verging on intentional acting not established

The taxpayer was assessed for approximately $2.4 million in shareholder benefits respecting amounts received by him over five years from his engineering-consulting company (“M.D. Consulting”), which he asserted were repayments of amounts he had advanced to it. In affirming the Tax Court’s finding that CRA could reassess those years beyond the normal reassessment period, Webb JA first found that the Crown had made out a prima facie case that the withdrawals were income to the taxpayer, and that this then permitted the Tax court to draw an adverse inference regarding the taxpayer’s failure “to call his accountant or bookkeeper, or presenting a properly completed shareholders’ loan account reconciliation” (para. 48) – hence, there had been a misrepresentation. Furthermore, such “misrepresentation was attributable to the neglect or carelessness of Mr. Deyab in not properly maintaining a shareholders’ loan account that perhaps could have justified the payment of the amounts to him as repayment of his shareholder’s loan” (para. 40).

However, Webb JA reversed the imposition of a gross negligence penalty, stating (at paras. 63, 76-77):

Conduct that would be tantamount to intentional acting to avoid the payment of taxes on money that is withdrawn from a corporation is different from careless or neglectful conduct that results in a person being taxed for receiving a benefit from that corporation in statute-barred years. …

The fact that M.D. Consulting incurred losses throughout its corporate history supports a viable and reasonable hypothesis that M.D. Consulting could have been simply repaying Mr. Deyab amounts that he had previously advanced to M.D. Consulting. …

Mr. Deyab’s failure to maintain proper records that might have established that M.D. Consulting was repaying amounts payable to him (if such amounts had been properly recorded) does not establish that his failure to include the amounts withdrawn in his income demonstrated “a high degree of negligence tantamount to intentional acting” or that he was indifferent as to whether he complied with the Act.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) neglect in not maintaining a shareholder’s account 247
Tax Topics - General Concepts - Evidence adverse inference drawn from failure to call bookkeeping evidence after prima facie case made out against the taxpayer 331

Xia v. Canada, 2020 FCA 35

penalty for failure to report a share of tips paid by patrons of a casino

The income of the taxpayer from working as a slot attendant at a casino in 2011 and 2012 was approximately doubled as a result of his receipt of tip income, being his share of tips that had been paid by patrons out of their non-taxable winnings and then allocated among the attendants. In confirming the finding below that the taxpayer had been properly assessed a gross negligence penalty for his failure to report his tip income, de Montigny JA stated (at para 7):

Mr. Xia is an intelligent and well-educated individual, has provided tax and financial advice, has knowledge of the tax benefits and consequences of security funds and life insurance, and yet made no effort to ascertain whether the tip amounts he received from casino patrons had to be reported.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 6 - Subsection 6(1) - Paragraph 6(1)(a) a share of pooled tips paid by casino patrons was taxable 177

Wynter v. Canada, 2017 FCA 195

wilful blindness is deliberate ignorance and does not require intention to cheat

The taxpayer, who after starting to use DSC Lifestyle Services in preparing her returns, claimed very large business losses despite not having operated a business, was found by the judge below to have shown wilful blindness so as to justify the imposition of the s. 163(2) penalty.

Rennie JA stated (at para. 13):

A taxpayer is wilfully blind in circumstances where the taxpayer becomes aware of the need for inquiry but declines to make the inquiry because the taxpayer does not want to know, or studiously avoids, the truth.

In then rejecting the taxpayer’s appeal and, in particular, rejecting her submission (at para. 14) that “wilful blindness requires evidence sufficient to demonstrate that the taxpayer actually knew the return was false and that the taxpayer ‘intended to cheat the administration of justice’,” Rennie JA stated (at para 17):

While evidence, for example, of an actual intent to make a false statement would suffice to meet the “knowingly” requirement of subsection 163(2), requiring an intention to cheat to establish wilful blindness is inconsistent with the well-established jurisprudence that wilful blindness pivots on a finding that the taxpayer deliberately chose not to make inquiries in order to avoid verifying that which might be such an inconvenient truth. The essential factual element is a finding of deliberate ignorance, as it “connotes ‘an actual process of suppressing a suspicion’”: Briscoe [2010 SCC 13] at para. 24. … The gravamen of the offence under subsection 163(2) is making of a false statement, knowing (actually or constructively, i.e., through wilful blindness) that it is false.

He added (at para. 21):

[W]here gross negligence is alleged, I would expect consideration of whether the conduct of the taxpayer at issue is such a marked departure from what would be expected that it constitutes a high degree of negligence sufficient to be characterized as a marked departure from the standards, practices, and due diligence expected of a responsible taxpayer.

Words and Phrases
wilful blindness

Melman v. Canada, 2017 FCA 83

gross negligence where failure of merchant banker to review a tax return with an unexpectedly low amount payable

A senior merchant-banking executive with financial acumen received a $15M dividend, deposited the estimated tax thereon of $4.7M to mature on the filing due date, did not review his return (which omitted the dividend) before signing and filing it, and promptly redeployed the $4.7M. In finding that there was no basis to reverse Bopcock J's finding that the taxpayer was liable for a s. 163(2) penalty, Dawson JA stated (at paras 4, 6-7):

… [T]he Tax Court articulated the correct legal test for establishing gross negligence: neglect beyond a failure to use reasonable care. …

i. The appellant signed his tax return without reviewing or reading it… .

ii. … This… “constituted an unusual casualness” on the part of the appellant and reflected “insouciance and an indifferent delegation of responsibility”… .

iii. … [T]he appellant arranged for an escrowed investment to be made in an amount to cover his estimated tax liability [which was] inexplicably redeployed contemporaneously with the filing of the 2007 return. …

[T]hese findings … support the Tax Court’s finding of wilful blindness amounting to gross negligence.

Weinberg Family Trust v. The Queen, 2016 TCC 37

no TCC jurisdiction to reverse a provincial gross negligence penalty

V. Miller, J found that the Tax Court did not have the jurisdiction to consider an appeal by a purported Alberta trust which had been assessed by CRA for Ontario income tax (on the basis of being resident in Ontario) as well as for Ontario gross negligence penalties, stating (at para. 14):

[I]t is also clear that the Tax Court of Canada does not have jurisdiction to decide if a provincial penalty is properly imposed: Andrew Paving & Engineering Ltd v Minister of National Revenue, [1984] C.T.C. 2164 (TCC) at paragraph 8 and Raboud v Canada, 2009 TCC 99 at paragraph 12.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Ontario - Taxation Act 2007 - Section 125 - Subsection 125(3) no TCC jurisdiction to address Ontario (s. 121(2)) penalty 208

Lacroix v. Canada, 2008 FCA 241

net worth assessment

The Minister determined, under a net worth assessment, that the taxpayer had $559,673 of unreported income over four years, and thus reassessed the taxpayer beyond the normal limitations period and imposed penalties, pursuant to ss. 152(4)(a) and 163(2). The taxpayer argued that the alleged income was actually a loan from a friend, but the trial judge did not find the claim credible. The taxpayer further argued that a net worth assessment could not support a finding of willful default because, by its very nature, a net worth assessment does not directly point to any specific default.

The Court upheld the Minister's assessments. There were two separate questions to be decided. The first was whether, leaving aside s. 152(4), the Minister was required to prove the additional sources of the income determined under the net worth assessment. Pelletier JA stated (at para. 20):

Applying the net worth method changes nothing in [the ordinary] method of proof. Where the Minister presumes that the income detected using the net worth method is taxable income, the onus is on the taxpayer to demolish this presumption. If the taxpayer presents credible evidence that the amount in question is not income, the Minister must then go beyond these assumptions of fact and file evidence proving the existence of this income.

The second question was whether a net worth assessment could, by itself, support assessments under s. 152(4) or penalties under s. 163(2). Pelletier JA stated (at paras. 29-30):

In the case at bar, the Minister found undeclared income [by way of a net worth assessment] and asked the taxpayer to justify it. The taxpayer provided an explanation that neither the Minister nor the Tax Court of Canada found to be credible.

...Clearly, there must be some other explanation for this income. It must therefore be concluded that the taxpayer had an unreported source of income, was aware of this source and refused to disclose it, since the explanations he gave were found not to be credible. In my view, given such circumstances, one must come to the inevitable conclusion that the false tax return was filed knowingly, or under circumstances amounting to gross negligence.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) no credible explanation for net worth appreciation 368

Canada (Attorney General) v. Villeneuve, 2004 DTC 6576, 2004 FCA 20

followed in Attorney General of Canada v. Savard and Houde, 2004, DTC 6734 2004 FCA 150

The taxpayers received substantial tax refunds by misrepresenting that they were married (when they were not) or that they had dependants (when they did not) as a result of conniving with an Agency employee, who allowed the refund claims and received a rebate from the taxpayers of two-thirds of the refunds received by them.

Such conduct was found to be willful blindness and, consequently, gross negligence.

Canada (Attoreny General) v. Simard, 2004 DTC 6381, 2003 FCA 427

The Court has no discretion as to the amount of the penalty under s. 163(2), nor does it have any regarding interest thereon.

Findlay v. Canada, 2000 DTC 6345 (FCA)

A firm that the taxpayer used to prepare both his personal return and the return of a corporation to which he had transferred his business had filed the s. 85(1) election showing the transfer and reporting a gain on the transfer, but failed to include this gain when it prepared his personal return.

Isaac J.A. found that as the Crown had not shown, on balance of probabilities, that the taxpayer had knowledge of this omission and did nothing about it, it could not be said that the gross negligence of the tax preparer could be attributed to the taxpayer. Furthermore, the trial judge, in noting the absence of a reasonable explanation by the taxpayer or the tax preparer as to the reason for the submission, had erroneously shifted to the taxpayer the burden of showing that he was not liable for gross negligence of the tax preparer. Accordingly, no penalty was payable.

Can-Am Realty Ltd. v. The Queen, 94 DTC 6293, [1994] 1 CTC 336 (FCTD)

In reversing a penalty imposed on the taxpayer with respect to a shareholder benefit that had not been reported in the taxpayer's return because of his failure to provide any details of the transaction to the taxpayer's accountant, Rouleau J. stated (at p. 6303):

"It is not sufficient to show a taxpayer has failed to comply with his obligations under the Act, nor is it enough to demonstrate he has been careless or negligent in the filing of his return. What is required is conduct which is exceptional and flagrant to the degree of gross negligence."

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) honest belief re appropriateness of cost recovery method 202

The Queen v. Caseley, 90 DTC 6618 (P.E.I.S.C.)

Because proceedings under s. 163(2) are of an administrative nature (there being no charge, no trial, no sentence or any fine in excess of an amount calculated to compensate the Minister for the costs of his investigation), there was no violation of s. 11(h) of the Charter in bringing proceedings against the taxpayer under s. 239(1)(d) after the taxpayer had been assessed under s. 163(2).

Crown Cork & Seal Canada Inc. v. The Queen, 90 DTC 6586 (FCTD)

The claiming by the corporation of CCA on an asset which had not yet been substantially completed was based on a misunderstanding of the kind of asset upon CCA could be taken. Accordingly, the penalty was not exigible. "The care with which they went about the business, although not great, certainly did not amount to gross negligence" (p. 6595).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 13 - Subsection 13(21) - Depreciable Property not yet depreciable property if not usable 98

Hazlewood v. The Queen, 89 DTC 5537, [1990] 1 CTC 5 (FCTD)

The taxpayer did not report amounts paid to him on his withdrawal from a professional partnership as income, on the basis of an incorrect belief that they were payments of capital. Joyal J. stated that "there is some consistency between his belief and the more objective evidence before me to give weight to what might otherwise be regarded as mere self-serving assertions."

Kerr v. The Queen, 89 DTC 5348, [1989] 2 CTC 112 (FCTD)

The Court rejected a submission of counsel for the taxpayer that because the Minister had not established the precise quantum of unreported income on a net worth reassessment, no penalties could be imposed.

Hudson Bay Mining and Smelting Co., Ltd. v. The Queen, 86 DTC 6244, [1986] 1 CTC 484 (FCTD), aff'd 89 DTC 5515 (FCA)

No penalty was exigible where the taxpayer made a supposedly deductible "gift" to the Manitoba Crown which, in fact, was characterized as partial consideration for a payment made by the Crown to the taxpayer. "Something more than mere disagreement must be determined: a false statement by a taxpayer, as an example, or gross negligence, or a finding by the tax department that an error was made deliberately ... One cannot fault the plaintiff for putting the best possible light on the situation."

De Graaf v. The Queen, 85 DTC 5280, [1985] 1 CTC 374 (FCTD)

The taxpayer was liable under s. 163(2) for taxable capital gains that he failed to report. He was found to have a "relatively high degree of understanding of basic taxation principles, and the awareness and confidence to choose competent professional advisers and to insist on achieving a basic understanding of work done on his behalf," yet gains from the disposition of land were not reported by him to his accountant.

Patricio v. The Queen, 84 DTC 6413, [1984] CTC 360 (FCTD)

"[T]he plaintiff was very aware of the necessity of keeping accurate records for the purpose of claiming expenses against income but he seemed to be conveniently blind to the fact that one should keep equally careful records in order to account for revenue .... [T]he extent to which he did not know what was required by the tax system was the result of purposely choosing to wear blinkers rather than mere carelessness or simple negligence. Wilful blindness by someone capable of acting in a responsible manner is in my view, in the circumstances of this case, gross negligence."

Venne v. The Queen, 84 DTC 6247, [1984] CTC 223 (FCTD)

A possible mistake of law by the taxpayer, i.e., a belief that interest from "'escrow mortgages'" was not taxable, would not have been unreasonable for the particular taxpayer in question given his lack of education and accounting experience. On this basis and having regard to the strict construction given to penalty provisions, it was found that gross negligence in not reporting income had not been established.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) failure to review return with obvious errors 75

The Queen v. Columbia Enterprises Ltd., 83 DTC 5247, [1983] CTC 204 (FCA)

A company is criminally liable for statements and omissions made by an independent public accountant in the company's tax returns if the company's responsibility for filing tax returns was delegated to him to the extent of leaving to his discretion what was to be reported in the returns, and not requiring the completed returns to be returned to it for its review before being filed.

Courtois v. The Queen, 80 DTC 6175, [1980] CTC 243 (FCTD)

The taxpayer was able to show that the Minister's reassessments, and the corresponding s. 163(2) penalties, were unfounded by establishing that he had kept large sums of cash secreted in his bedroom and his safety deposit box in order to protect himself against possible claims from his ex-wife.

Re R. v. Whittle, 79 DTC 5011 (BCSC)

There is nothing that precludes the Crown from pursuing remedies both under s. 163(2) and s. 239(1).

Hawrish v. M.N.R., 76 DTC 6455, [1976] CTC 748 (FCA)

The majority held that "a failure to report legal fees was not due to wilful evasion or suppression but was due to the taxpayer's ignorance of what was required of him."

See Also

Paletta Estate v. The Queen, 2021 TCC 11

a reasonable person would have surfaced the omission of an $8M trading gain with an inquiry of his accountant

The taxpayer in Friedberg entered into spread positions in gold futures contracts, and in the same taxation year closed out the losing legs on his straddle positions (while entering into further contracts to maintain his hedged position) but deferred closing out the remaining contracts until the subsequent taxation year. The taxpayer here carried out a similar straddle program, except that it involved FX OTC forward contracts rather than gold futures. In order that he could shelter virtually all of the income of around $40 million earned by him over a number of years ending in 2007, he had to keep increasing the scale of his straddle position, given that the entire gain from closing out, in each year, the gain leg from the previous year’s trading needed to be offset in addition to his other taxable income for that year. Associated companies claimed $150 million in losses from the same straddle program.

In an “egregious error” (para. 115), Paletta failed to include any of the gains realized on the closing out of the gain legs in early 2002 (that had been put on in 2001) in computing his income for 2002 (so that the trading loss that he claimed in 2002 was overstated by approximately $8 million). In sustaining the gross negligence assessed on this amount, Spiro J stated (at paras. 269-270):

By filing his 2002 return without including$8,030,844.73 of gains realized in 2002, Mr. Pat Paletta’s understatement of his income for that year constituted conduct tantamount to intentional acting. Mr. Pat Paletta knew that the gain legs had to be included in computing income the year after the related loss legs were closed out. Near the end of 2001, some $8,000,000 in losses were realized, so Mr. Pat Paletta would have known that approximately $8,000,000of gains had to be included in computing his income for 2002.205.

In conclusion, Mr. Pat Paletta’s conduct with respect to the filing of his 2002 return falls far short of the expected conduct of a reasonable person. Such a person would have, at the very least, confirmed with his accountant before signing his 2002 return, whether the gains from closing out the gain legs in early 2002 were, in fact, included in computing his income or that year. Had he asked that basic question, he would not have understated his income for 2002 by $8,030,844.73.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 9 - Timing straddle trade losses recognized consistently with Friedberg 337
Tax Topics - Income Tax Act - Section 3 - Paragraph 3(a) - Business Source/Reasonable Expectation of Profit losses generated under straddles were deducible from a source notwithstanding that they generated small economic losses 261
Tax Topics - General Concepts - Sham FX straddles were not shams, and “window dressing” is not a standalone anti-avoidance doctrine 241

Hansen v. The Queen, 2020 TCC 102

benefit of doubt should be given to taxpayer

An individual in the concrete pouring or foundation repair business sold five homes in succession over a six-year period after having occupied and improved them. D’Auray J found that the first three sales were statute-barred given that the taxpayer had relied on advice from his accountant that he was eligible for the principal residence exemption. For the two latter sales that were within the normal reassessment period, the gains were on income account given that he dealt with those houses “in a business-like way: he selected newly built homes that would be easier to sell, leveraged his construction industry experience to make improvements that would attract future buyers and picked homes in desirable markets.”

D’Auray J went on to find that no penalty was applicable, stating (at paras. 128 and 129):

Gross negligence … must involve a high degree of negligence tantamount to intentional acting, or an indifference as to whether the law is complied with or not. … Mr. Hansen consulted a CPA and relied on his advice to claim the exemption. He was therefore not grossly negligent. In my view, this is the conduct of a reasonable person in the same situation.

In addition, as stated … in Mensah … even if Mr. Hansen’s conduct was 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.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) no carelessness given bona fide belief that principal residence exemption applied 178
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Real Estate annual purchase, improvement and sale of homes following their occupation was on income account 229

Grewal v. Canada (National Revenue), 2020 FC 356

an accepted voluntary disclosure that included loans did not stop CRA from later assessing s. 163(2) penalties for failure to include them in income

A voluntary disclosure included a description of various loans and did not volunteer that they gave rise to taxable benefits. After the voluntary disclosure was accepted through reassessments, a subsequent audit of one of the taxpayer’s companies caused CRA to conclude that these loans gave rise to additional income under s. 246(1) of $15M to the taxpayer for years that had been covered by the voluntary disclosure, and CRA not only reassessed for the s. 246(1) benefits, but also included gross negligence penalties of over $3M.

In dismissing the taxpayer’s application for judicial review of the decision to impose the penalties, Shirzad J stated (at paras 37 and 38):

… If taxpayers could re-characterize taxable income or benefits as non-taxable benefits in their applications to the VDP and thereby escape penalties from future audits for having “disclosed” the amounts in this application, it would be contrary to the purpose of the VDP and its public policy rationale, which is meant to promote compliance with Canada’s tax laws … .

[T]o interpret the Information Circular as promising protection from penalties even on the non-taxable amounts disclosed by the taxpayer would put taxpayers applying to the VDP in a better position than the ordinary taxpayers.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) disclosure of loan amounts in VDP application did not protect against penalties when CRA later concluded they were income 435

Frank-Fort Construction Inc. v. The Queen, 2020 CCI 6

taxpayer not subject to penalty where its CPA firm made inexplicable errors

D’Auray J found that a one-man corporation that had a business of constructing (through using third-party contractors) and selling about 10 or 20 new homes per year had not been demonstrated by the Crown to be liable for gross negligence penalties for failure to report in its GST returns two of the home sales it made in the 2 ½ year audit period. Factors noted by her included:

  • all the necessary information for preparing the tax returns and financial statements had been provided to the taxpayer’s CPA firm
  • due to an explicable error on the part of the accounting firm, the receipts from the two sales had been recorded as proceeds of mortgage loans received by the taxpayer
  • the GST returns were prepared and signed by an accountant at the CPA firm, which delegation did not constitute gross negligence on the part of a taxpayer whose principal had no accounting background and a modest education
  • although there also had been failures to report sales in preceding reporting periods for which QST penalties had been assessed, the taxpayer had been assured by a different accountant at the CPA firm that he would now personally attend to the file
Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 285 gross negligence penalty where failure of new home builder to report two sales 254

Wardlaw v. The Queen, 2019 TCC 199

effective s. 163(2) penalty rate can exceed 50% where there has been a loss carryback

In his return for 2009 prepared by “Fiscal Arbitrators,” the taxpayer claimed a fictitious business loss of over $357,000, and requested that the excess of the claimed loss over what he could use in 2009 be carried back to the prior three taxation years. Had CRA allowed those claims, they would have generated refunds for the four years of almost $104,000. However, the claims were immediately denied. Before going on to find (consistently with Torres) that the taxpayer’s appeal of a s. 163(2) penalty should be dismissed on the basis of wilful blindness, Jorré DJ noted that the penalty quantum was harsh, stating (at paras 12, 13):

[T]here is a particularity in the mode of computation where the false statement, if accepted, would result in a loss carry back. As a result … the penalty is in fact higher than 50%. As was pointed out [in McLeod v. R 2013 TCC 228, para.30]: “[T]he tax is computed at a relatively high tax rate which does not take into account that the actual tax savings would be spread over four taxation years and computed at lower tax rates (ss. 163(2.1)).”

In this particular case… it produces a penalty of around 70% of the amount that would not have been paid if the loss claimed had been unchallenged.

He then stated (at paras. 40-41):

[I]t does seem odd that what is apparently meant to be a 50% penalty can, where a loss carry back is involved, become a significantly higher percentage.

The Appellant may wish to consider making an application for a reduction of the penalty and interest under the taxpayer relief provisions contained in subsection 220(3.1)… .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2.1) carryback of false claim to lower-tax rate years generated 70% effective penalty rate 179

Wall v. The Queen, 2019 TCC 168, aff'd on other grounds 2021 FCA 132

a savvy home developer “knowingly” failed to report his substantial profits

A licensed real estate agent, who had been reporting income of about $20K a year, realized gains from the construction and sale (in 2006, 2008 and 2010) of three homes in Vancouver (together with a small gain from the sale of a vacant lot) totaling over $2.2 M. He professed to have constructed each home as a principal residence, but did not substantiate that he or his family occupied the homes.

Before going on to find (at para. 203) that the taxpayer “knowingly made false statements or omissions in his 2006, 2008 and 2010 tax returns,” Visser J stated (at para. 201):

Mr. Wall’s false statements or omissions were blatant and readily determinable … . Mr. Wall is a knowledgeable and experienced real estate developer who knew that tax is payable on business income from real estate developments. In my view, he acquired each of the Three Homes with the intention of reselling them at a profit. However, he attempted to conceal his development business by attempting to create a façade of inhabiting the properties and claiming the principal residence deduction. In my view, the circumstances surrounding the acquisition, redevelopment and sale of each of the Three Homes can only be interpreted as a business activity. In addition, Mr. Wall’s excuse for failing to report the profits from the sale of the Vacant Lot is simply not credible.

Xia v. The Queen, 2019 TCC 30 (Informal Procedure), aff'd 2020 FCA 35

taxpayer failed to inquire re his position that casino tip money was non-taxable

The taxpayer, who received wages from working as a slot attendant at a casino in 2011 and 2012 of $27,011 and $29,327, respectively, which he reported in his returns, was also found to be taxable on unreported tip income of $23,937 and $39,219, respectively. The taxpayer unsuccessfully argued that these amounts remained part of the source, that is, the jackpot winnings, that were non-taxable gambling proceeds and were, therefore, not received by virtue of his employment.

In confirming the imposition of gross negligence penalties, Campbell J. stated (at para 21):

[The taxpayer] … has several degrees from well-recognized educational institutions. He has a varied work experience, which included providing investment, tax and financial advice as an insurance agent and mutual funds agent. … [H]e recognized that the status of payments had the potential of changing from non-taxable to taxable. … The unreported tips were very significant and material when compared to the income that he reported in these taxation years. … [W]ith his background …, at the very least he should have …made some effort to ascertain the proper tax treatment of such large gratuity amounts.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 5 - Subsection 5(1) pooled tip money received at casino was taxable gratuities 127

Mady v. The Queen, 2017 TCC 112

was not responsible under s. 163(2) for the unbeknownst sharp practice of his tax advisor

The taxpayer executed an agreement to sell all the shares of his dental corporation (“MDPC”) for $4.5 million and then implemented a s. 86 “estate freeze” transaction on the morning of the closing in which he exchanged all his common shares of MDPC for preference shares with a redemption value of $2 million and for new common shares. He then sold 85% of his new common shares to his wife and two children at a sale price of $0.01 per share, and they sold the same shares later in the day to the purchaser for $8,645 per share.

Hogan J found that the fair market value of the shares sold by the taxpayer to his wife and children was $8,645, not $0.01, per share, so that the taxpayer realized a corresponding capital gain under s. 69(1)(b)(i). However, he vacated the imposition of a gross negligence penalty on the taxpayer. The preferred shares’ redemption value equalled the $2 million equity value of MDPC as estimated by a colleague (Ms King) at the same accounting firm (BDO) as the taxpayer’s tax advisor (Van Essen), who had not been informed by him that the purchaser had agreed to purchase that equity for $4.5 million. In this regard, Hogan J stated (at paras. 157-8 and 160):

… I infer that the Appellant honestly believed that the shares of MDPC could be valued under the income approach… . [T]he Appellant did what a reasonable prudent person would be expected to do: he relied on the advice of a reputable tax advisor to structure the share transfer to his wife and two daughters. Mr. Van Essen in turn commissioned a valuation report by a qualified colleague. The Appellant was two steps removed from the valuation process.

While Mr. Van Essen acted imprudently in failing to disclose the pending sale of MDPC to his colleague, I do not believe that the Appellant can be held accountable for his actions. … It is well established that a taxpayer is responsible for the actions of his agent only where the taxpayer is privy to the gross negligence of that agent or wilfully blind to the fact of that negligence and the taxpayer acquiesces or participates in the false statements or omissions.

…I cannot conclude that the Appellant, knew, or, for that matter, was wilfully blind to the fact, that the valuation performed by Ms. King could not be relied upon to determine the fair market value of MDPC as at January 13, 2012 and be used to set the price for which the 85 Class B, C and D common shares were sold to the Appellant’s family members.

More generally, he had stated (at paras. 146-7):

Skilled tax advisors and the CRA have difficulty identifying where the boundaries of anti-avoidance provisions lie. …

Courts have generally been reluctant to apply gross negligence penalties where a taxpayer relied in good faith on the advice of tax professionals, or where all relevant amounts were disclosed in tax returns.

Hogan J further noted (at paras. 157, 159):

[T]he Appellant honestly believed that the shares of MDPC could be valued under the income approach on the basis of the latest financial statements of MDPC reviewed by BDO because the so-called freeze transaction had been discussed with his advisor well before the date of those statements… .

[T]he transfer agreements between the Appellant and his wife and daughters all contained purchase price adjustments… [and] he believed that this type of clause allowed for greater leeway in setting the price paid by the related parties.

Finally, CRA had assessed the taxpayer under the s. 86(2) conferral-of-benefit rule, which Hogan J had found to be inapplicable, and the alternative (successful) s. 69(1)(b)(i) ground was raised for the first time by the Justice Department in the appeal. In this regard, Hogan J stated (at para 155):

…[I]t is difficult to say that the Appellant, knew about, or was wilfully blind to, the application of a provision, i.e. subparagraph 69(1)(b)(i), that the CRA auditor overlooked during the assessment process.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 74.5 - Subsection 74.5(11) transfer from wife to higher-income husband was infused with his income-splitting purpose (as well as regulatory breach if she didn’t transfer) 393
Tax Topics - General Concepts - Ownership wife and children did not acquire beneficial interest in shares the taxpayer was to transfer to them, under tax plan, until the share transfer occurred 263
Tax Topics - Income Tax Act - Section 86 - Subsection 86(2) family members did not acquire beneficial interest in new shares until after completion of s. 86 reorg 297
Tax Topics - General Concepts - Fair Market Value - Shares arm’s length sales price established FMV for closing-date internal transfer of same shares 482
Tax Topics - Income Tax Act - Section 69 - Subsection 69(1) - Paragraph 69(1)(b) - Subparagraph 69(1)(b)(i) contemporaneous arm’s length sale price established that shares previously transferred at undervalue 478
Tax Topics - General Concepts - Price Adjustment Clause no jurisdiction to comment on application of price adjustment clause where the affected taxpayers are not appellants 233

Canada (Attorney General) v. Bellil, 2017 CAF 104

claimant makes a representation that it "knows" to be false when it has full knowledge of the facts

An unemployed engineer spent 11 weeks in Tunisia. On his weekly Employment Insurance declarations he answered “no” to the question as to whether he was outside Canada, and was assessed a penalty under s. 38(1) of the Employment Insurance Act for making a statement that he “knew” to be false or misleading.

De Montigny JA found that the Social Security Tribunal, Appeals Division had committed an error requiring the case to be remitted for a fresh hearing when it had reversed the penalty on the grounds that the engineer had had no intent to defraud the system. He stated:

[T]he only requirement imposed by the legislature is that a claimant made a representation that the claimant “knew’’ was false or misleading, that is to say, with full knowledge of the facts. The absence of fraud or having integrity is irrelevant.

Words and Phrases
knew sciemment
Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Employment Insurance Act - Section 38 - Subsection 38(1) - Paragraph 38(1)(a) intent to defraud irrelevant to knowingly making a false statement 397

Melman v. The Queen, 2016 TCC 167, aff'd 2017 FCA 83

failure to review a return (which excluded a $15M dividend) by a normally meticulous senior executive was wilful blindness

In February 2007, two holding companies owned and controlled by the taxpayer disposed of their holdings in the merchant banking company, Onex Corp. (from which the taxpayer was retiring as a senior executive) and declared and paid cash dividends of $15,080,000 to him, whose grossed-up amount was $18,850,000.00. The taxpayer invested $4.7 million in term deposits maturing in April 2008, in order that he would be able to fund the income taxes estimated by his accountants to be payable in his 2007 return on these dividends. The taxpayer’s accounting firm did not include the dividends in his 2007 tax return. A T5 reporting slip was not prepared by his accounting firm (where there had been personnel changes) and in early April 2008 he pressed them for an estimate of his taxes payable (which, when it came, excluded the $4.3 million). The taxpayer, contrary to prior practice, did not read or review his tax return (which was personally delivered by an accountant who returned by waiting taxi) before signing it. The return excluded the dividends. He promptly redeployed the $4.7 million deposit. The taxpayer held his accountants responsible for the omitted dividend, and commenced a civil action against them.

Bocock J found the taxpayer to be willfully blind, so that the taxpayer’s appeal of a s. 163(2) assessment was dismissed.

  • The taxpayer was “one of the most knowledgeable, highly educated and experienced merchant bankers in this country and perhaps beyond” (para 34),
  • the omitted dividends was massive (para 36),
  • the error should have been easily detected as “the contrasts between reported and unreported income amounts shout from the line items within the 2007 return” (para 37),
  • the “departure from the usual face-to-face meeting, page by page review and supervised execution with his primary accountant constituted an unusual casualness” (para 40),
  • the “departures from normal oversight… occurred at the critical time of measuring and determining the existence of wilful blindness, namely, the review, discussion and execution of the tax return” (para 43), the “large unutilized escrowed amount invested in April 2007 to satisfy his estimated, potential tax liability maturing in late April 2008… was unobserved, unmentioned and inexplicably re-deployed contemporaneously with the filing of the 2007 return” (para 45), and
  • his “otherwise meticulous, watchful and exacting self lapsed” when he “failed to read or review his tax return, or even a copy.” (paras 47 and 48)

Khattar v. The Queen, 2016 DTC 1011 [at 2566], 2015 TCC 338

obviously fictitious business losses cooked up by tax preparer

The taxpayer, who had never operated a business, had a tax preparer who claimed very large fictitious business losses on his 2008. CRA sent a letter in 2009 questioning the business losses and request for carryback, to which the tax preparer prepared a bizarre letter that made no sense to the taxpayer, yet he signed it and sent to the CRA. CRA sent another letter in 2010 requesting information and warning of penalties, and the tax preparer again prepared a letter with absurd content (for example, “[a] slave does not have the capacity to contract with the slave owner” ) which the taxpayer again signed and sent to the CRA. The CRA disallowed the losses and imposed penalties under s. 163(2).

Masse DJ dismissed the taxpayer's appeal of the penalties, as signing (and thus certifying the accuracy of) an absurd return was sufficient to justify the penalties.

Taylor v. The Queen, 2016 DTC 1012 [at 2575], 2015 TCC 335

"good people of modest means" who relied on tax preparer were advised to seek relief under s. 220(3.1)

The taxpayer, a university educated technical support worker, had always prepared his own returns since emigrating to Canada in 1990, but on the advice of his financial advisory group he engaged a tax preparer for his 2009 taxation year. The tax preparer created fictitious business losses for the 2009 taxation year and a request for related carryback for the 2006 to 2008 taxation years, even though the taxpayer did not own or operate a business. The taxpayer forwarded CRA's subsequent correspondence to his tax preparer, to which the preparer would write responses that did not contain the requested information and then have the taxpayer sign and send the responses back to CRA. CRA denied the claimed business losses and penalized the Appellant pursuant to subsection 163(2) of the Act in the amount of $29,925.19.

Masse DJ dismissed the taxpayer's appeal from the penalties, as they were clearly supported by the Act. However, noting that the taxpayer and his wife were nevertheless “good people of modest means who were taken in by unscrupulous people”, Masse DJ directed the attention of the taxpayer to the relief provisions in s. 220(3.1) of the Act and the information circular (IC07-1) as well as a form (RC4288) for making taxpayer relief applications (para 59).

Atutornu v. The Queen, 2014 DTC 1150 [at 3485], 2014 TCC 174 (Informal Procedure)

CRA has no duty to catch obviously faulty income deductions

The taxpayers' return was prepared by an individual whose last name they could not recall at the hearing. The return claimed meaningless deductions (e.g. deducting money one owes to oneself as "agent"), and Jorré J found the Minister's assessment of penalties to be well founded.

Jorré J noted that CRA owes no duty of care to a taxpayer to prevent them from receiving refunds based on obviously vacuous claims (para. 29) - although such duty would not be relevant to s. 163(2) in any event, because it is the grossly negligent underreporting that triggers liability, not the receipt of a refund (para. 30).

AgraCity Ltd. v. The Queen, docket 2014-1537

Reply must explain specific bases on which a penalty was imposed

The taxpayer purportedly arranged to have most of the profits arising from sales of a product earned by a Barbados company. The Minister assessed s. 163(2) penalties. In the Minister's reply, the key allegation in support of penalties was that:

AgraCity knowingly, or under circumstances amounting to gross negligence, has made or has participated in, assented to or acquiesced in the making of, a false statement or omission in its income tax returns for the years 2007 and 2008 by underreporting income by $2,413,520 and $3,670,478, respectively.

The taxpayer moved to strike that paragraph on the basis that it was merely "parroting" s. 163(2). C Miller J found that an obiter dictum in O'Dwyer, dealing with a similar issue in connection with a s. 237.1(7.4) penalty, was apt (para. 27, citing O'Dwyer at para. 31):

[S]imply reiterating the multiple combinations of possibilities that could result in the imposition of the penalty does not tell a taxpayer what specific act (that would result in the imposition of the penalty) he or she is alleged to have committed.

Applying this principle, C Miller J stated (at para. 31):

I am not prepared to strike these provisions but am going to allow the Respondent time (two weeks) to straighten them out and clarify whether the penalty is due to knowingly underreporting or underreporting under circumstances amounting to gross negligence or, if both, plead in the alternative. If gross negligence is at issue, then the pleadings should be clear what the circumstances are ... .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 247 - New - Subsection 247(2) factual allegation that foreign affiliate did nothing was fatal to ss. 247(2)(a) and (c) pleadings but not ss. 247(2)(b) and (d) 230
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 53 argument inconsistent with assumed facts struck from pleadings, but might be reintroduced at trial as an alternative argument 172

9016-9202 Quebec Inc. v. The Queen, 2014 TCC 281

CRA used penalty as lever to terminate tax avoidance structure

Until 1995, a Quebec garbage collection company ("EBI") employed its garbage collectors and drivers. It then encouraged most of them to each become the sole shareholder and director of a newly incorporated Quebec company, so that EBI entered into contracts with each company for the provision of the services of the individuals which previously had been provided directly. CRA reassessed the 2004 to 2006 years of the individual companies (the taxpayers) on the basis that they were carrying on personal services businesses. Their Notices of Objection were not rejected until May 2010. CRA included gross negligence penalties in its reassessments before May 2010 of the companies for their 2007 and 2008 years. The structure was then terminated by EBI and the taxpayers.

In finding that the Minister had not established gross negligence, Favreau J noted that the taxpayers were represented by competent professionals and that the structure had not been challenged for the first nine years, and stated (at para. 97, TaxInterpretations translation):

The sole reason that the penalties were imposed appears to me to have been to force the parties to terminate the structure.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 125 - Subsection 125(7) - Personal Services Business incorporated garbage collectors continued to be controlled 286

Bolduc v. The Queen, 2014 DTC 1127 [at 3338], 2014 TCC 128

conduct of other scheme participants was irrelevant to gross negligence determinations

The taxpayer (and thousands of others) participated in a bogus tax scheme based around fake business losses, and was assessed for gross negligence penalties. The taxpayer appealed the penalties and moved to have the Minister disclose, among other things, all documents obtained as a result of the search warrants CRA obtained in investigating the scheme, the names of all CRA employees who have knowledge of the Scheme and similar schemes, and all documents CRA had about the scheme and similar schemes.

VA Miller dismissed the taxpayer's motion. After noting that the taxpayer's angle seemed to be that his fellow scheme participants constituted some kind of "reasonable person" sample, she stated (at para. 22):

The focus of the inquiry ... will be on facts specific to the Appellant's education, experience, knowledge and conduct. The documents sought by the Appellant are not relevant to these facts... .

Lavoie v. The Queen, 2014 DTC 1104 [at 3218], 2014 TCC 68

deducting home renovations tenuously related to home office was not grossly negligent

The taxpayer ran a sales and marketing business. His clients were principally livestock breeders and producers, and he worked from a home office. He deducted home renovation expenses from his business income, including a three-bay garage (to serve as an office and inventory storage), landscaping, and a fence. He argued the landscaping was for projecting a professional environment to clients and the fence was to improve security for his home office. C Miller J found that these two expenses were too tenuously connected with business to be deductible, but reversed the penalties for gross negligence. He stated (at para. 30):

I accept that with many of [the taxpayer's corporation's] disallowed expenses (fencing around the house for example), Mr. Lavoie was pushing the envelope, but conclude he was not grossly negligent in doing so. Simply because he has not proven to me that, on balance, this was a legitimate business expense, does not mean that there is no arguable basis whatsoever on which to attempt to deduct it.

For other claimed expenses, such as his wedding, jewelery for his wife and video games for his children, penalties were clearly justified.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 169 - Subsection 169(1) cottage used 10 days for personal use and 160 days for business was primarily for business use 57
Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(h) cottage used 10 days for personal use and 160 days for business was primarily for business use 57

Vachon v. The Queen, 2014 DTC 1070 [at 3023], 2013 TCC 330, vacated 2014 CAF 224

no follow-up after receiving CRA demands
vacated on other grounds 2014 CAF 224

The taxpayer, who was a consultant, provided signed cheques to his accountant without filling in the recipient. The accountant misappropriated the funds, and apparently filed returns on behalf of the taxpayer which were different than the versions which he showed to the taxpayer. The taxpayer did not contact CRA after having received various demands from CRA and after having been told by the accountant that the accountant had lost his file yet again.

Tardif J found that penalties were not warranted, stating (at paras. 70, 74):

Although we cannot refer to mens rea, an essential element in criminal law, it seems important to me that to call for penalties in tax matters, the person in question must have shown, whether passively or actively, a minimal intention to hide certain data with a direct impact on his fiscal duty.

The taxpayer's confidence in his accountant, although reckless and lacking in vigilance, did not show such an intention (para. 74).

Morton v. The Queen, 2014 DTC 1093 [at 3162], 2014 TCC 72 (Informal Procedure)

"form" includes forms that are not officially prescribed under the Act

After having filed returns for 1998-2001 that were essentially correct, the taxpayer submitted fraudulent T1 Adjustment Requests. Bocock J found that the Minister was justified in assessing s. 163(2) penalties for the misrepresentations on the Requests, and for assessing such penalties beyond the normal reassessment period.

The taxpayer's principal argument was that a T1 Adjustment Request is not a "return, form, certificate statement or answer" under the Act, as all these words have specific meanings. Bocock J stated (at para. 22):

The use of this [T1 Adjustment Request] "form", although not officially prescribed under the Act, is a fast, convenient and accepted method by which taxpayers make application for a determination under subsection 152(4.2) of the Act. To suggest that [we] should not consider this "application" as a "form" containing "statements" ... is not legally supportable.

Words and Phrases

Torres v. The Queen, 2014 DTC 1028 [at 2659], 2013 TCC 380

fantastical scheme to eliminate all tax owing

A firm ("Fiscal Arbitrators") promoted a tax refund scheme that relied on claiming fictitious business losses, with the result that the taxpayers claimed no tax owing for several consecutive years. C Miller J found that the taxpayers were liable for penalties under s. 163(2), notwithstanding that they trusted in, and were conned by, Fiscal Arbitrators. He stated (at para. 77):

I question how an individual, regardless of the level of education, who has worked in Canada, paid taxes and benefited from all the country has to offer, can without question enter an arrangement where he or she claims fictitious business losses and therefore simply does not have to pay his fair share, indeed does not have to pay any share of what it takes to make this country function.

C. Miller J drew the following principles to establish willful blindness in the making, assenting to or acquiescing in the making of a false statement in a return (at para 65):

a) Knowledge of a false statement can be imputed by wilful blindness.

b) The concept of wilful blindness can be applied to gross negligence penalties pursuant to subsection 163(2) of the Act and it is appropriate to do so in the cases before me.

c) In determining wilful blindness, consideration must be given to the education and experience of the taxpayer.

d) To find wilful blindness there must be a need or a suspicion for an inquiry.

e) Circumstances that would indicate a need for an inquiry prior to filing, or flashing red lights as I called it in the Bhatti decision, include the following:

i) the magnitude of the advantage or omission;

ii) the blatantness of the false statement and how readily detectable it is;

iii) the lack of acknowledgment by the tax preparer who prepared the return in the return itself;

iv) unusual requests made by the tax preparer;

v) the tax preparer being previously unknown to the taxpayer;

vi) incomprehensible explanations by the tax preparer;

vii) whether others engaged the tax preparer or warned against doing so, or the taxpayer himself or herself expresses concern about telling others.

f) The final requirement for wilful blindness is that the taxpayer makes no inquiry of the tax preparer to understand the return, nor makes any inquiry of a third party, nor the CRA itself.

Vicars v. The Queen, 2013 DTC 1259 [at 1443], 2013 TCC 329

CRA under no obligation to handle unsanitary documents

VA Miller J found that the Minister's decision to use a net worth assessment, and impose penalties on the taxpayers based on the amount thus determined, was justified.

The documents were provided to CRA in an unorganized garbage bag, and in a box that was contaminated with mouse droppings and had many documents shredded by the mice. It was unreasonable to require the official handling the case to handle the records and risk her health (para. 19). Moreover, to the extent that documents could be recovered, they supported CRA's position that the taxpayers had concealed income.

Hedzic v. The Queen, 2013 DTC 1242 [at 1315], 2013 TCC 249 (Informal Procedure)

reducing net worth assessment eliminated penalty

Following a net worth assessment, the Minister added a total of $41,441 to the income of the taxpayers for two successive years, an amount that more than doubled their taxable income in those years. The taxpayers were able to establish that approximately $28,000 should be eliminated from their reassessments. D'Auray J found that, because the gaps in reported income were not substantial after these adjustments, the taxpayers' s. 163(2) penalties should be vacated.

Bandula v. The Queen, 2013 DTC 1225 [at 1238], 2013 TCC 282

new immigrant

The taxpayer had limited English skills and no understanding of the Canadian tax system or appropriate record-keeping standards. Bocock J found that reassessment beyond the normal period was justified, but s. 163(2) penalties were not. Penalties under s. 163(2) entail a "deliberate act of conceit or omission" (para. 44), and in the "factually unique" circumstances involving a new immigrant (para. 38), there was no reason to infer any such deliberate omission.

Harvey v. The Queen, 2013 TCC 298

guilty plea is prima facie proof of income from tax evasion

Graham J found (citing Raposo) that the taxpayer's guilty plea under s. 239 for failing to report commission income from his real estate business was prima facie proof that he had also been grossly negligent for purposes of s. 163(2) (para. 25). It was not necessary to dispose of the taxpayer's argument that in the other action he had thought he was only pleading guilty to having been negligent, as in this action the Crown had established that the taxpayer had falsified statements of his commission income before providing them to his tax preparer. The taxpayer's appeal was denied in respect of the penalties.

Raposo v. The Queen, 2013 DTC 1216 [at 1199], 2013 TCC 265

guilty plea prima facie proof of income from fraud

The taxpayer had pleaded guilty to fraud in misappropriating funds from her former employer. She was sentenced to imprisonment of two years less a day to be served in the community, and to pay restitution of $40,000 to her employer. Paris J noted that, under s. 22.1 of the Ontario Evidence Act, a criminal conviction is prima facie proof of the underlying facts, although related jurisprudence states that the inference is even stronger where there was a full trial leading to a conviction (which was not the case here) (para. 14).

The taxpayer's conviction was therefore prima facie proof that she had misappropriated $40,000 (para. 37). Before upholding the penalty (based on underreported income of $37, 476 for the particular taxation year in question), Paris J stated (at para. 37):

I would adopt the position taken by Bowman C.J. in Biros v Canada, 2007 TCC 248, that where the respondent has proved that a taxpayer has received funds from a fraudulent scheme, the failure to report the income from the fraud is more likely part of the overall fraud than due to inadvertence by the taxpayer.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Evidence guilty plea is prima facie proof of income from fraud 193

Brisson v. The Queen, 2013 DTC 1197 [1052], 2013 TCC 235

willful blindness

VA Miller J found that the taxpayers had been negligent in signing their tax returns, which had been prepared by a firm of "professional tax consultants" who apparently had no professional certifications. The returns reported artificial business losses. The taxpayers had been willfully blind to the misrepresentations on their returns, especially given that they had been preparing their own returns for 35 years.

McLeod v. The Queen, 2013 DTC 1187 [at 1008], 2013 TCC 228

no relief based on lumpiness of penalty calculation

Woods J found that the taxpayer was willfully blind in acquiescing to her tax preparers' plans to claim a fictitious business loss for her 2009 taxation year which was in excess of her employment income for that year, and therefore that the s. 163(2) penalties against her were well founded.

On the matter of costs, the taxpayer asked for sympathy, as the penalty would have been levied on lower underlying tax if (contrary to s. 163(2.1)) the penalty had been computed on the basis of the off-setting of income over four years. Woods J stated (at para. 31):

I am not persuaded by an argument based on sympathy. I accept that the penalty is higher in this case than it would be in others, but the participation of Ms. McLeod in this scheme is reprehensible.

De Couto (Alco Windows Inc.) v. The Queen, 2013 DTC 1161 [at 880], 2013 TCC 198 (Informal Procedure)

dismal records but no deceit

Bocock J found that the taxpayer, having failed to maintain adequate records and having engaged in "inscrutable" tracking of expenses, shareholder advances and shareholder benefits, could be reassessed beyond the normal period. Regarding gross negligence penalties, Bocock J stated (at para. 20):

[T]he Court finds that the lack of records or accounts produced at the Hearing did not factually appear to be the result of advertent acts of deceit, deliberate omissions or culpable intention on the part of the Appellant. ... The Appellant is likely the primary and largest victim of his own negligence and carelessness.

The taxpayer's appeal of s. 163(2) penalties was therefore allowed.

Lenneville v. The Queen, 2013 DTC 1196 [at 1045], 2013 TCC 56

net worth assessment did not prove misrepresentation

The taxpayers ran a commercial fishing business. Because a substantial portion of that business was operated on a cash basis, a CRA auditor used a net worth assessment to determine that the taxpayers' income was under-reported. One of the three taxation years was beyond the normal assessment period, and the Minister assessed penalties under s. 163(2).

Tardif J agreed with the Minister's income adjustments (subject to small corrections) but not with the penalties or out-of-period reassessment. The net worth assessment was warranted in the circumstances, and it had been performed soundly. However, there was no evidence of dishonesty or negligence. Moreover, a disparity between the taxpayers' reported income and the amount determined under the net worth assessment did not in itself prove misrepresentation.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) misrepresentation onus not met in net worth assessment 126

Schmidt v. The Queen, 2013 DTC 1063 [at 337], 2013 TCC 11

alleged family loan was credible

The Minister imputed additional income to the taxpayer based on deposits into his bank account that he had not included in his return, and on that basis reassessed the taxpayer beyond the normal limitations period and imposed penalties. Hogan J. accepted the taxpayer's explanation that the amounts represented loans from his brother, and the accommodation of deposits of cheques from his brother's business. Unlike in Lacroix, the explanation of a loan from a sibling was credible - the taxpayer's brother had a hold on his account and was unable to make immediate withdrawals, whereas the taxpayer could. The Minister's assumptions were thus demolished.

Murugesu v. The Queen, 2013 DTC 1046 [at 222], 2013 TCC 21

reasonable reliance on accountant and no dishonesty

The Minister assessed the corporate taxpayer for gross negligence penalties for reporting income based on only $285,588 of gross revenue rather than the $458,558 actually received, based chiefly on the magnitude of the reporting failures. D'Arcy J. overturned the penalties based on his findings that:

  • the negligence in this case was mainly attributable to the taxpayers' accountant;
  • the magnitude of the failure to report income was considerably less than alleged, based on the accountant's further failure to report $88,856 of cash wages paid out;
  • it was reasonable for the individual taxpayer to rely on the accountant - given his unfamiliarity with English and with Canadian tax, it was appropriate that he chose an accountant recommended by members of his community who could speak to him in his native language;
  • the taxpayers replaced the accountant once CRA made them aware of the errors; and
  • there was no evidence of dishonesty.

Le v. The Queen, 2012 DTC 1297 [at 3948], 2012 TCC 349 (Informal Procedure)

net worth assessment

Favreau J. affirmed the Minister's net worth assessment of the taxpayer for $61,874 of unreported income in three years arising from a marijuana-growing operation, for which she had been convicted. Favreau J. noted that, as a "method of last resort," a net worth assessment is inherently "arbitrary and imprecise" (para. 17). Nevertheless, on the basis of the unreported income thus determined, he found that the magnitude of the failure to report income supported the Minister's assessment of gross negligence penalties.

Hine v. The Queen, 2012 DTC 1244 [at 3688], 2012 TCC 295

large discrepancy was innocent, given time crunch that was not taxpayers' fault

The taxpayer was a certified contractor who started a business of buying homes, renovating them, and selling them. He sold one home for $319,000, but did not receive the funds - instead, they were deposited into his lawyer's trust account. The lawyer applied those funds against the purchase of another property, so that the lawyer's trust account ledger statement showed the proceeds of sale as $161,035.12 rather than $319,000. This lower amount was the one used to calculate the taxpayer's profits on his income tax return, with the result that he claimed a business loss rather than a healthy profit. The Minister assessed the taxpayer for gross negligence penalties.

Hershfield J. found that the penalties were inappropriate, and the taxpayer meant to be diligent and accurate in reporting income. The taxpayer relied on his wife ("Prevost"), who was skilled in financial accounting, to prepare the return. Her explanation for the error was that, despite her hounding the lawyer for accounting records, she received them only days before the filing deadline. Wanting to avoid late-filing penalties, she did not have enough time to notice the discrepancy in the proceeds of disposition on the property, and surmised that the reported business loss related to a legitimate tax-planning strategy. While acknowledging that the amount of the discrepancy in income reporting was suspiciously large on its own, Hershfield J. accepted that there had been an innocent mistake. The taxpayer's and Prevost's conduct did not at any time suggest any intention to conceal income. Hershfield J. also noted that the Minister was required to prove that the taxpayers were indifferent as to whether income was accurately reported - "a mere probability is not sufficient" (para. 33).

In light of the finding that neither the taxpayer nor Prevost were negligent, it was unnecessary to decide whether it mattered that the allegedly negligent return was prepared by Prevost rather than the Taxpayer. Hershfield J. reasoned that, if such a determination did matter, "the attribution question must be applied no differently in a case [involving spouses] than it does when the taxpayer and the tax preparer are not so closely tied" (para. 43).

Chénard v. The Queen, 2012 DTC 1238 [at 3668], 2012 TCC 211 (Informal Procedure)

immigrant not excused for large fabricated losses

The taxpayer claimed personal expenses as business expenses but in fact never carried on a business. Bédard found that the taxpayer was grossly negligent in claiming such losses, notwithstanding that he had poor English skills and relied on a firm of tax experts to construct his tax strategy (also written in English). The magnitude of the failures to accurately report income were such that no degree of ignorance of English or Canada's tax system could have excused them. Besides being totally unsubstantiated, the claimed business losses represented more than 80% of the taxpayer's income for each of the seven years in question. The taxpayer could not reasonably have concluded that he was entitled to the deductions claimed, and his failure to consult people other than the ones preparing his tax plan amounted to wilful blindness.

Tyskerud v. The Queen, 2012 DTC 1179 [at 3453], 2012 TCC 196 (Informal Procedure)

obvious and substantial shareholder benefit

The taxpayer's use of her corporation's line of credit to pay down her personal debt resulted in a clear shareholder benefit, and her failure to report this benefit on her return was grossly negligent and warranted penalties under s. 163(2). Margeson J. noted that the amount of the benefit ($41,765.58) was large compared to the taxpayer's reported income ($12,925).

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 15 - Subsection 15(1) clear corporate appropriati0n 58

Chan v. The Queen, 2012 DTC 1171 [at 3421], 2012 TCC 168 (Informal Procedure)

relative magnitude of unreported investment income

The taxpayer was able to make out a due diligence defence for failure to report investment income, which only amounted to 1.06% of her income for 2007. She held the investments through TD Waterhouse, and it was reasonable to assume that she had received from TD Waterhouse all the resulting tax slips (T3 & T5).

A similar failure in the following (2008) taxation year (in which she had no notice of her failure to report amounts in 2007) could not support a finding of due diligence, because the unreported amounts were higher - although only 4.87% of her total income, the missed interest was 15% of her interest income, and the missed dividends were over 41% of her dividend income for 2008. Moreover, as TD Waterhouse had been late in sending the information slips in the previous year, a reasonable person would have taken further steps to ensure that the amounts were accurately reported (para. 27). Nevertheless, she incurred no penalties under s. 163(1) because her failure for 2007 (the first of the two years) had been reasonable.

Mullen v. The Queen, 2012 DTC 1154 [at 3358], 2012 TCC 139 (Informal Procedure)

superficial attempt to change residence

The taxpayer was reassessed in respect of income from stock options exercised in 1997, 1999, and in 2001. He argued that he was not a Canadian resident in those years. V.A. Miller J. agreed that the taxpayer was not resident in Canada in 1997, when he was employed and customarily living in China, but dismissed the 1997 appeal on other grounds.

V.A. Miller J. found that the taxpayer was a Canadian resident in 1999 and 2001, and V.A. Miller J. found that his assertions to the contrary amounted to wilful default, for which he should be reassessed under s. 152(4)(a)(i) outside the normal period and pay penalties under s. 163(2). The taxpayer's severing of his ties to Canada was largely superficial - he ostensibly sold the Belleville estate to his children in exchange for a mortgage, but never actually requested payment from them. The core of his social and family life, as well as his finances, remained in Canada, and his personal investment in China, and subsequently Thailand, was only enough to maintain a particular lifestyle during his periodic sojourns there. Moreover, there was evidence to indicate that the taxpayer had spent more time in Canada than he claimed.

McEwen v. The Queen, 2012 DTC 1080 [at 2905], 2012 TCC 31

ignored warnings to keep adequate records

The taxpayer had over-reported expenses and under-reported revenue connected with his moving business. Although previously warned to keep adequate business records, he had failed to do so, and the records he did have, which he collected in a box, included receipts for personal expenses (including expenses for a jacuzzi package, tickets to an unspecified event, and a canopy on his house) and failed to include various client invoices. Webb J. stated (at para. 22):

It seems clear to me that the Appellant was indifferent with respect to whether he complied with the ITA and the ETA and that the mens rea of recklessness has been established in this case.

Griffin v. The Queen, 2012 DTC 1024 [at 2621], 2011 TCC 531 (Informal Procedure)

world of difference between $86K and $240K

The taxpayers' appeals from gross negligence penalties were dismissed. Their income was roughly 2.5 times and 3 times what they reported, respectively, and their only explanation was an error arising from removing a column in an accounting spreadsheet. Jorré J. emphasized that "there is a world of difference" between living on the $86,000 reported by them on a combined basis and the $240,000 earned (para. 63).

Fourney v. The Queen, 2012 DTC 1019 [at 2575], 2011 TCC 520

line codes in electronic filings were incomprehensible to taxpayer

Seeking to protect herself from being sued by her brother, the taxpayer transferred title to all her real properties for no consideration to corporations under her majority control. She reported rental and business income and expenses from these properties while her accountant did the same in the corporations' returns. The Minister's reassessment included the inclusion in her income of a taxable capital gain on a disposition of the properties to the corporations, and gross negligence penalties.

Hogan J. found that the taxpayer had retained beneficial ownership of the properties and that the corporations had acted as mere agents, so no capital gain was realized and the income and expenses on the properties were hers and not the corporations'. He also found that the taxpayer had not been negligent. She was unsophisticated in matters of tax and accounting, and her accountant (Mr. Chambers) had failed to advise her properly about the tax issues involved (having not even inquired how the corporations had acquired the new properties). Hogan J. stated (at para. 56):

The evidence shows that there was an absence of effective communication between the Appellant and Mr. Chambers. For example, he admitted that the Appellant was presented with copies of the corporations' 2003 and 2004 tax returns much later, after they had been electronically filed. Those returns are not comprehensible to anyone other than a person who has memorized the line codes opposite which the tax information appears. ... A taxpayer, or a tax lawyer for that matter, cannot determine what the codes mean unless they have access to a detailed coding manual which explains their meaning. ... On reviewing the returns at issue, the Appellant had no way of knowing that Mr. Chambers claimed the same losses as she had claimed on her personal tax return.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Agency 191
Tax Topics - General Concepts - Corporate/Separate Personality 257
Tax Topics - General Concepts - Ownership presumption of resulting trust where property transfer for no consideration 257
Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(1) bare trust arising on creditor-proofing transfer 257
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition rebuttable presumption of resulting trust on transfer for no consideration 257

9067-9051 Québec Inc., Vincent v. The Queen, 2012 DTC 1073 [at 2842], 2011 TCC 456

152(4)(a)(i) is lesser threshold

Hogan J. confirmed s. 163(2) penalties against the taxpayers in respect of business expenses, given that the taxpayers' only proof that the expenses were genuine was an invoice that the taxpayers themselves had fabricated.

The Minister had also sought penalties in respect of an alleged shareholder benefit, which Hogan J. denied in accordance with his having already found that the taxpayers' conduct had not transgressed the lesser threshold in s. 152(4)(a)(i).

Lapalme v. The Queen, 2012 DTC 1003 [at 2511], 2011 TCC 396 (Informal Procedure)

directors' life insurance not a gift from corporation

The taxpayers were shareholders and directors of a corporation, which they caused to purchase insurance policies on their lives. The agent who arranged the policies then returned a substantial portion of the premiums directly to the taxpayers in cash. Favreau J. upheld the Minister's decision to reassess beyond the normal period and impose penalties under s. 163(2). The taxpayer's contention that the amounts were a gift was not credible, given the amount of the gifts and their regularity (the taxpayers had done the same thing before). The court also drew an adverse inference from the taxpayers' decision not to have the insurance agent testify.

Wong v. The Queen, 2011 DTC 1079, 2011 TCC 30 (Informal Procedure)

taxpayer's education-level

Payments received by the taxpayer from a corporation of which he was a shareholder and over which he had operational control clearly were payments for services rendered rather than loan repayments (and, in fact, were called "salary" by the taxpayer in giving his evidence.) In these circumstances and given that the taxpayer was a capable and educated professional with work-related experience, the "high degree of blameworthiness involving reckless conduct" (para. 33) sufficient to establish the applicability of the gross negligence penalty had been made out by the Minister.

Mompérousse v. The Queen, 2010 DTC 1210 [at 3558], 2010 TCC 172 (Informal Procedure)


As the Minister had established a large gap between the business income of the taxpayer calculated by him and the business income reported by the taxpayer, the Minister had satisfied the burden of proof on him under s. 163(2) in the absence of a credible explanation from the taxpayer.

JDI 2000 Transport Ltd. v. The Queen, 2010 DTC 1206 [at 3541], 2010 TCC 310

sloppy bookkeeping ≠ gross negligence

In finding that the portion of penalties assessed against the taxpayer that were based on related company expenses should be reversed, Woods, J. stated (at para. 42) that:

It is quite possible that these errors were a matter of sloppy bookkeeping. If so, it would constitute negligence but it would not elevate to the level of knowledge or gross negligence as required by s. 163(2).

However, the claiming of personal expenditures as "repairs and maintenance" and "travel" was admittedly falsely made, and gave rise to the penalty.

Dao v. The Queen, 2010 DTC 1086 [at 2957], 2010 TCC 84

The taxpayer had a marijuana-growing operation at her house. The Minister reassessed her for over $300,000 of income from the operation, and imposed s. 163(2) penalties for false statements on her returns. The taxpayer alleged that she had nothing to do with the growing operation, that the amounts added to her income represented loans from family and friends, and that the Minister's methods of assessing her personal expenses were flawed. Campbell J. dismissed the taxpayer's appeal in the main, citing a lack of credible evidence.

While considering Lacroix, Campell J. remarked that that decision appeared to conflate the tests in 152(4)(a)(i) and 163(2), which would eliminate the mens rea element of s. 163(2). He stated at paras. 44-45:

Where a taxpayer is accused of reckless and reprehensible conduct bordering on criminal behaviour for which he may be slammed with the punishment of gross negligence penalties, the Minister under subsection 163(2) has a duty to justify its decision which will not be satisfied merely, as Lacroix suggests, by showing that the taxpayer has unreported income but could not provide a credible explanation.

In the present appeals, the magnitude of the omissions in relation to the income declared is significant and occurred over a number of years.

Pontarini v. The Queen, 2009 DTC 1462, 2009 TCC 395

Penalties were applicable to a doctor who, rather than providing to his accountant financial statements prepared by his medical clinic, prepared his own statements that significantly understated revenues and overstated expenses. Although he had a difficult and troubled personality, "there was no credible evidence of a material, physical or mental health illness, condition or treatment that interfered with [his] ability to comprehend or reason ..." (para. 26).

Richer v. The Queen, 2009 DTC 1413, 2009 TCC 394

After finding that the debt forgiveness rules applied to the taxpayer contrary to the taxpayer's reporting of a transaction in which a claim against him was settled, Jorré, J. noted that the taxpayer was convinced in his own mind that he could not owe anything to the party in question other than what he paid on the settlement of the claim (so that there was no forgiveness in the taxpayer's mind) and that "failing to apply the debt forgiveness provisions is rather different in nature from failing to include, say, gross rents in the computation of rental income") (footnote 64). Accordingly, the taxpayer was not grossly negligent.

Charron v. The Queen, 2009 DTC 1401, 2009 TCC 290

Before finding that a penalty imposed on the taxpayer in respect of his deliberate overvaluation by $402,225 of losses from securities transactions in the taxpayer's 2002 taxation year was entirely warranted, Tardif, J. noted (at para. 52) that the taxpayer deliberately and knowingly decided to report losses that were greatly overstated owing to circumstances he considered favourable in that the vast majority of the investors in the stock market, if not all, had sustained considerable losses.

Gestion Forêt-Dale Inc. v. The Queen, 2009 DTC 1378, 2009 TCC 255

The penalty was applicable, given that, at the time the corporate return of the recipient of a deemed dividend was signed, it was known that in fact the two corporations were not connected.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Effective Date purported retroactive issuance and redemption of shares was ineffective 142

Sarwari v. The Queen, 2009 DTC 1170, 2009 TCC 357

In deleting a penalty for gross negligence assessed on the taxpayer in connection with a net worth assessment, Webb, J. stated (at para. 53) that:

"While [the taxpayer] was careless or neglectful, I am not satisfied that the Respondent has established that he had the requisite mens rea to justify the imposition of the penalty under subsection 163(2) of the Act. He believed that he could withdraw funds from his company as payment on the amount that the company owed to him, although he was obviously careless about keeping track of whether the funds he was withdrawing exceeded the amount that the company owed to him."

O'Dea v. The Queen, 2009 DTC 912, 2009 TCC 295

The two principals of a limited partnership tax shelter were assessed gross negligence penalties. In vacating the assessments, Campbell, J. stated (at para. 113) that "although their suspicions should have been raised based on their business background, the conduct does not meet the requisite threshold of reprehensible recklessness".

Omer Reshad O/A Kabul Auto Sell v. The Queen, 2009 DTC 625, 2009 TCC 158 (Informal Procedure)

After noting that unreported income of the taxpayer was 4% (for one year) and 14% (for another) of his total revenues indicating that the subsection required evidence of mens rea, Webb, J. went on to find that the Minister had failed to establish gross negligence of the taxpayer in failing to report the amounts.

Séguin Boyer v. The Queen, 2008 DTC 4891, 2008 TCC 88

The failure of the taxpayer, who was an accounting secretary, to report taxable capital gains of approximately $168,000 realized by her in both her 2000 and 2001 taxation years from the disposition of shares of BCE Emergis Inc. represented gross negligence.

Laplante v. The Queen, 2008 DTC 4822, 2008 TCC 335 (Informal Procedure)

Gross negligence penalties were confirmed given that when the taxpayer "signed his income tax returns for the taxation years in question, he knew very well that there was a very significant difference in the net rental income when compared with the 1999 and 2000 taxation years, yet he did not try to ascertain why there was such a difference." (para. 14)

Abinader c. La Reine, 2008 DTC 4785, 2007 TCC 111

The imposition of penalties on the taxpayer was justified given that he claimed charitable credits knowing that he had received false receipts.

Golden v. The Queen, 2008 DTC 3363, 2008 TCC 173

Proof in a previous criminal proceeding that the taxpayer had evaded income tax on an amount that he failed to include in his income satisfied the onus of the Crown in a subsequent civil proceeding that the s. 163(2) gross negligence penalty applied.

Locations of other summaries Wordcount
Tax Topics - General Concepts - Abuse of Process relitigating an amount determined in criminal sentencing 179
Tax Topics - General Concepts - Estoppel 179

Hougassian v. The Queen, 2007 DTC 823, 2007 TCC 293

The taxpayer, who in his 2000 year had $2 million of employment income and interest income of $276,420 (representing a high interest rate on a large deposit that he had specially negotiated with the bank) showed indifference with respect to compliance with the Act and, therefore, gross negligence, in signing a return which showed only $985 of interest income.

Harris v. The Queen, 2005 DTC 1179, 2005 TCC 501

The taxpayer's failure to report capital gains from transactions in an on-line account for which she received no T5008s was not demonstrated by the Minister to be gross negligence. Although she had "a lackadaisical approach to her obligations under the Act ... Ms Harris lacked the fiscal sophistication and organization finesse to hatch and employ a deliberate strategy to avoid reporting taxable capital gains" (p. 1182).

Riordan v. The Queen, 2005 DTC 397, 2005 TCC 150

The taxpayer was subject to the penalty for failure to report over $1 million of employee stock option benefits realized by him over a four-year period notwithstanding that no T4 slips were issued to him. He made no effort to inform himself of the tax treatment of the benefits, the omission of the benefits was not an error an average taxpayer would make, his lack of disclosure was not merely a failure to use reasonable care but reflected indifference as to whether the law was complied with, the amounts were in excess of his annual employment income, and the applicable standard of care was greater than that for a taxpayer of marginal intelligence.

Villeneuve v. The Queen, 2004 DTC 2258 (TCC), rev'd 2004 DTC 6077 (FCA)

The taxpayer paid an individual $8,000 in cash for making a claim on his behalf for a tax refund of $12,364 in respect of deductions for fictitious dependants.

In finding that the taxpayer was not subject to a penalty for gross negligence, Lamarre Proulx T.C.J. noted the lack of sophistication of the taxpayer and characterized (p. 2262) his action as resulting more from an "ambush" than "a deliberate decision on his part to contravene the Act".

Klotz v. The Queen, 2004 DTC 2236, 2004 TCC 147, aff'd 2005 DTC 5279, 2005 FCA 158

Carelessness of the taxpayer in verifying the value of prints that he donated at an appraised value that was well in excess of his purchase price did not give rise to the penalty for gross negligence.

Bernick v. The Queen, 2003 DTC 839, 2003 TCC 433

The balance sheet for a Bahamian partnership in which the taxpayer invested recorded bonds at their maturity value rather than the much lower purchase price, supposedly in accordance with Bahamian generally accepted accounting principles. When the partnership disposed of the bonds at a selling price higher than its purchase price, the taxpayer recorded losses based on the selling price being lower than the maturity value.

Miller T.C.J. found that the taxpayer knowingly acquiesced in the making of an omission, i.e., filing the financial statements in his return knowing that they did not state that the cost of the bonds was recorded at maturity value rather than purchase price. However, the taxpayer's penalty was the minimal amount of $100 per annum given that the understatement of the taxpayer's income flowed from the accounting principle which had been utilized when preparing the financial statements, rather than from the taxpayer's omission.

Drozdzik v. The Queen, 2003 DTC 445 (TCC)

After denying all expenses claimed by the taxpayer in respect of an alleged business of selling herbal products in chains (on the basis that they did not qualify as a business) and partially disallowing expenses claimed in respect of a fishing business, Margeson T.C.J. went on to find (at paras. 290-291) that no gross negligence penalty was payable:

"This is a penal section. It has extreme consequences for the taxpayer and should only be resorted to on evidence which makes it clear that the taxpayer has knowingly, or under circumstances amounting to gross negligence, made an omission or false statement in his returns of income which resulted in him reporting less tax than he would otherwise have had to pay. The actions of the Appellant in this case do amount to carelessness, lack of proper knowledge with respect to recordkeeping matters and to some extent, his own mistake and belief that he would not have owed any income tax in some of the years in question. However, these factors do not amount to gross negligence as alleged by the Minister. The burden in that respect is on the Minister ... ."

Cox v. The Queen, 2002 DTC 1515 (TCC)

No penalty was payable under s. 163(2) by the taxpayer for failure to report significant income over a six-year period as he suffered from paranoid schizophrenia and lacked the requisite mental state to justify the penalty.

Dwyer v. The Queen, 2001 DTC 725 (TCC)

The taxpayer was liable for penalties for failure to report interest income from numerous residential mortgage loans made by him, notwithstanding that he had been acquitted of charges under s. 239(1)(d), on the basis of an absence of mens rea. The taxpayer (p. 732) "was no neophyte and he had been a professional mortgage lender for years".

Western Securities Ltd. v. The Queen, 97 DTC 977 (TCC)

Penalties imposed on the taxpayer were directed to be deleted given that there was no evidence that the overstated V-day values reported by him were determined in bad faith or recklessly. In addition, there was no requirement that independent appraisers be retained.

Farina v. The Queen, 97 DTC 487 (TCC)

In finding that the taxpayers had not been grossly negligent in representing that customer lists had belonged to them rather than their company, McArthur TCJ. took into account (at p. 490) "their casual and broad stroke approach to their business affairs [and] their lack of attention to detail".

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) reported goodwill as personal rather than corporate asset 51

Fortino v. The Queen, 97 DTC 55 (TCC), briefly aff'd on procedural grounds 2000 DTC 6060 (FCA)

In finding that even if (contrary to her actual finding) that amounts received for non-compete covenants by the taxpayer were taxable, penalties would not have been applicable, Lamarre TCJ. stated (at p. 72):

"... considering all the different positions taken by the Minister to try to justify his own assessments, I do not see how we can attribute to the appellants a degree of negligence ... when especially they have obtained professional advice that the NCA payments were not taxable."

Ganne v. The Queen, 95 DTC 363, [1994] 1 CTC 2124 (TCC) (Informal Procedure)

Following testimony of the taxpayer that he did not declare interest income on the deferred purchase price payable to him following the sale of a California property because he did not receive any information slip showing the exact amount of interest and because he thought the interest was part of the selling price for the property, Lamarre TCJ. concluded that the taxpayer's lack of care in this regard was not gross negligence.

Dutil v. The Queen, 95 DTC 281 (TCC)

In finding that the taxpayer, who purchased a painting and then immediately donated it to a gallery for an appraised value that was five times his purchase price, was subject to the penalty, Dussault, T.J.C. stated (at pp. 287-288):

"I do not think a reasonably intelligent and prudent person could seriously claim to have made an honest gain through a charitable donation ... . If the appellant did not know the exact amount of the valuation and the receipt until after he had agreed to his colleague's proposal, as he claimed, and despite the fact that his cheque was dated after both the valuation and the receipt, the value set in those documents at five times the amount spent should have alerted him. I do not accept the argument that in his former line of work, securities, it was ordinary that securities, for no apparent reason, quintuple in value in three days ..."

Johnson v. The Queen, 94 DTC 1009, [1994] 1 CTC 2025 (TCC)

As a result of the negligence of the chartered accountant who was preparing the taxpayer's return, a dividend of $181,211 received by the taxpayer was not reported. Given that the taxpayer relied completely on his accountant to report his tax affairs and had no reason not to place such reliance on him, the negligence of the taxpayer in not reviewing his return did not amount to gross negligence.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(3) 25

Armstrong v. The Queen, 93 DTC 1043, [1993] 2 CTC 2681 (TCC)

The taxpayer purchased a farm property for consideration comprising $166,824 plus his commitment to build a residence for the vendor with an agreed value of $76,649. The failure of the taxpayer to include this latter sum in his income (notwithstanding the deduction of associated costs) did not give rise to a penalty given that he had given all relevant returns to his accountant one month before the April 30 filing deadline, the error was attributable to an assistant not understanding the information given to him and not asking the appropriate questions, and the taxpayer's failure to detect this error was attributable to his not being an astute businessman.

Dunleavy v. The Queen, 93 DTC 417 (TCC)

The failure of the taxpayer, a medical practitioner, to report a gain on the sale of a condominium unit in his return was not subject to penalty given that he had believed that the transaction was reported in his return (which had been prepared by his accountant). His brief review of the return had focused on the taxes payable amount, which was consistent with his view that the condominium unit was capital property and that no taxes were payable by him with respect to the transaction.

Arvisais v. MNR, 93 DTC 506, [1993] 1 CTC 2473 (TCC)

The taxpayer purchased works of art, through an individual said to be associated with a gallery, for 25% of the value ascribed to the works of art and, in his tax return, wilfully falsified the year in which the works had been purchased as being the preceding year. In finding the taxpayer liable for the penalty, Dussault J. stated (pp. 509-510):

"... The appellant at least closed his eyes to the true nature of the transactions and circumstances which, given the situation, should doubly have alerted him. The fact that he conducted no more thorough check during the years in issue also goes beyond simple neglect."

Administrative Policy

May 2019 CPA Alberta CRA Roundtable, GST Session – Q.7

generally no ETA s. 285 gross negligence penalty for interpretive errors
Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 285 a gross negligence penalty generally should not apply to a genuine misinterpretation of the ETA or where no false statement has been made 276

25 February 2016 CBA Roundtable, Q. 9

penalty where no return filed

Similarly to ITA s. 163(2), the ETA gross negligence penalty provision (s. 285) references the making of “a false statement or omission in a return…statement…or answer” knowingly or in circumstances amounting to gross negligence. CRA asserted that “the gross negligence penalty is potentially applicable even where no GST/HST return has been filed,” and cited Kion, where “natural persons,” who had made false statements to have their profitable business partnership deregistered for GST purposes and had not filed GST returns, were subjected to gross negligence penalties.

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 285 gross negligence penalty can be imposed even where no return is filed 203
Tax Topics - Excise Tax Act - Section 296 - Subsection 296(2.1) using VDP assessment to access rebate claim 114

May 2016 Alberta CPA Roundtable, GST Q.5

factors taken into account/report approved

What is current policy in applying ETA s. 285 penalties? CRA responded:

Below are some examples of factors that may be considered…:

  • First occurrence vs multiple instances of similar errors;
  • Voluntary disclosure vs adjustment detected via audit work;
  • Adjustments made due to errors vs adjustments due to unreported/misreported transactions;
  • Materiality of the false statement or omission;
  • Whether the registrant was contacted by CRA in the past regarding the issue at hand;
  • Expected level of registrant's knowledge of GST/HST matters;
  • Degree of registrant's involvement in preparing the GST/HST return;
  • Whether the registrant attempted to correctly apply the ETA and inadvertently misinterpreted it;
  • Whether sufficient books and records were maintained; and
  • Compliance history of the registrant.

Auditors who have identified adjustments during an audit that are subject to gross negligence penalties must prepare a gross negligence penalty report which… must be… approved by the auditor’s team leader and subsequently by the manager of the audit section or another independent CRA authority. …

Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 285 penalty can be collected on understated net tax resulting from reasonable mistake 234

11 June 2014 Internal T.I. 2014-0519701I7 - Filing a NIL return to avoid late-filing penalties

return with substantive missing elements

A taxpayer files a NIL tax return (which does not report any of the transactions on which tax is payable) or a substantially incomplete tax return. CRA stated:

[W]here all or some of the necessary and substantive elements on the prescribed form are missing, or incorrectly stated…the penalty under subsection 163(2) may be applicable.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) - Paragraph 152(4)(a) - Subparagraph 152(4)(a)(i) return with substantive missing elements 117
Tax Topics - Income Tax Act - Section 162 - Subsection 162(1) return with substantive missing elements 125

23 April 2013 Internal T.I. 2013-0485161I7 - Calculation of Gross Negligence Penalty

A taxpayer claimed a business loss and requested that the loss be carried back to the three prior taxation years. The loss was fictitious and CRA imposed penalties for gross negligence. The taxpayer argued that the losses must be limited to 50% of the income reduction in the taxation year in which the loss was reported, so that no penalties could arise from the purported carry-back amounts.

In rejecting this position, CRA noted that s. 163(2.1)(b) provides that an understatement of income includes amounts that were deducted but were not deductible.

6 September 2012 Internal T.I. 2012-0452151I7 - S. 163(2) Penalty on Fictitious Business Losses

In the event that a taxpayer reports false business losses in circumstances amounting to gross neglect, a taxpayer will still be liable for s. 163(2) penalties even if the taxpayer's true income for the year is nil. To calculate the amount of the penalty, CRA adds to the taxpayer's reported income (the nil amount) the amount of income attributable to the false statement (the false business loss), and then computes the difference between the tax owing on that amount and the tax owing on the taxpayer's reported income (the nil amount). The penalty is 50% of the difference.

Application Policy 96-05 "Penalties Under Subsection 163(2)"

October 1992 Central Region Rulings Directorate Tax Seminar, Q. I (May 1993 Access Letter, p. 230)

Discussion comparing the conduct described in s. 163(2) and s. 152(4)(a)(i).

14 November 1991 Memorandum (Tax Window, No. 13, p. 21, ¶1595)

RC's Policy is not to levy a penalty on a taxpayer for an offence committed prior to the introduction of a particular penalty. For example, because the maximum penalty under s. 163(2) was increased on September 13, 1988, a false statement made in a 1986 return would not attract an increased rate of penalty if the return was filed before that date.

3 May 1990 T.I. (October 1990 Access Letter, ¶1482)

In determining whether s. 163(2) applies, the courts will consider the taxpayer's capacity to understand the facts, the care exercised by him, his intent and the complexity of the facts.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(1) 40


Colin Campbell, "Application of the Charter to Civil Penalties in the Income Tax Act", 2002 Canadian Tax Journal, Vol. 50, No. 1, p. 1.

Krishna, "Liability for False Statements or Omissions Due to Gross Negligence", Canadian Current Tax, March 1992, p. A5.

Paragraph 163(2)(a)

Subparagraph 163(2)(a)(i)

Administrative Policy

21 January 2013 Internal T.I. 2012-0442021I7 F - Assessing 163(2) penalty

deduction against increase to income attributable to a false statement can be reduced by QPP contribution increase or by discretionary CCA claim that is wholly related to that income source

Of the adjustments made to Mr. C’s return, only a portion relate to a false statement made by him. These adjustments result in his Quebec Pension Plan ("QPP") deduction being increased, of which only a portion relates to the false statement. The Directorate stated:

[S]ubparagraph 163(2.1)(a)(ii) permits the deduction, from the undeclared amounts, of the amounts that are wholly applicable thereto.

[T]he increase in the QPP deduction is a deduction that is wholly applicable to the undeclared income and therefore may be allowed as a deduction against this income for the purposes of computing the Penalty. Accordingly, we are of the view that a net amount of XXXXXXXXXX is included under subparagraph 163(2)(a)(i) since it is reasonable to allocate all of this net amount to the False Statement of Mr. C.

Respecting the situation where the taxpayer (Mr. D) also wishes to claim previously unclaimed capital cost allowance claims respecting an increase in his income all of which relates to a false statement, the Directorate stated:

[T]he increase in CCA could be a deduction wholly applicable to the undeclared income in this case by Mr. D and be deductible against that income for the purpose of computing the penalty if the deduction is exclusively and mutually interdependent with the undeclared income and has not previously been deducted in computing income for the year as reported in the income tax return filed. … If, on the other hand, the CCA relates more to the business as a whole (i.e. related to reported income and undeclared income), we are of the view that it would not be wholly applicable to undeclared income and would not be allowed as a deduction for the purpose of calculating the penalty.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(c.2) penalty is computed on total RMES adjustment, not just the false portion 142
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(c) false RMES claim by husband does not generate any penalty for resulting overstatement of CCTB, WITB and GSTC by wife, assuming she made no false statement 312

Paragraph 163(2)(c)

Administrative Policy

21 January 2013 Internal T.I. 2012-0442021I7 F - Assessing 163(2) penalty

false RMES claim by husband does not generate any penalty for resulting overstatement of CCTB, WITB and GSTC by wife, assuming she made no false statement

Mr. A, claimed a refundable medical expense supplement ("RMES") amount in his income tax return under s. 122.51(1) and made a false statement. In her return, Mrs. B claimed amounts under ss. 122.61(1) (Canada child tax benefit ("CCTB")), 122.5 (GST tax credit ("GSTC")) and 122.7(2) or (3) (working income tax benefit ("WITB")). Following an audit, adjustments are made to Mr. A’s return, only a portion of which relates to the False Statement. As a result of this reassessment of Mr. A, the amounts of CCTB, GSTC and WITB for Mrs. B would change if her return were open for redetermination.

The Directorate stated:

[S]ince the normal reassessment period applicable to Mrs. B for the particular taxation year has ended and Mrs. B has not made a False Statement in this case, we are of the view that you cannot redetermine for the particular taxation year the CCTB, CTPS and WITB amounts in respect of Mrs. B. Indeed, the provisions of subsection 152(4) read in conjunction with subsection 152(1.2) preclude, after the expiry of the normal reassessment period, a re-determination of those amounts for Mrs. B except as provided in paragraphs 152(4)(a) and (b).

On the basis that the CCTB, WITB and GSTC amounts in respect of Mrs. B cannot be redetermined, we are of the view that the amount calculated in paragraphs 163(2)(c), (c.1) and (c.3) will be equal to nil for Mr. A since the amounts of CCTB, WITB and GSTC are the same as those calculated from the information provided by Mr. A and Mrs. B in their income tax return filed for the particular taxation year.

However, it seems to us that you should question the fact that Mrs. B used in her tax return the incorrect information provided by Mr. A to obtain the CCTB, WITB and GSTC amounts.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(c.2) penalty is computed on total RMES adjustment, not just the false portion 142
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(a) - Subparagraph 163(2)(a)(i) deduction against increase to income attributable to a false statement can be reduced by QPP contribution increase or by discretionary CCA claim that is wholly related to that income source 303

15 January 2013 Internal T.I. 2012-0459581I7 F - 163(2) Penalty - CCTB and GSTC

penalty applied to both spouses even though only one received an overpayment of the CCTB and GSTC

Two spouses (Mr. A and Ms. B) knowingly or with gross negligence underreported their business income in their respective returns for a particular taxation year, as a result of which Ms. B received an amount under s. 122.61(1) (Canada Child Tax Benefit ("CCTB")) and s. 122.5 (Goods and Services Tax Credit ("GSTC")). CRA is proposing to reassess both Mr. A and Ms. B, one consequence of which is that Ms. B will have to repay the CCTB and GSTC amounts in full. After discussing the effect of the formula for computing the gross negligence penalty in each of s. 163(2)(c) and (c.1), the Directorate stated:

[T]he penalty provided for in paragraphs 163(2)(c) and (c.1) may apply to both spouses when each spouse made a false statement as to sums or amounts deemed to be in a return referred to in subsection 163(2). We do not believe that this result is unfair or contrary to tax policy. In this case, this penalty applies because both Mr. A and Ms. B made a false statement and not because Ms. B received an overpayment of CCTB or GSTC. The fact that the calculation of the penalty is based on the same overpayment for two different persons is irrelevant in our view.

Paragraph 163(2)(c.2)

Administrative Policy

21 January 2013 Internal T.I. 2012-0442021I7 F - Assessing 163(2) penalty

penalty is computed on total RMES adjustment, not just the false portion

Mr. A, claimed a refundable medical expense supplement ("RMES") amount in his income tax return under s. 122.51(1) and made a false statement. Following an audit, adjustments are made to Mr. A’s return, only a portion of which relates to the False Statement. The Directorate stated:

Subparagraph 163(2)(c.2)(ii) refers to the amount of RMES paid on account of tax payable under this Part for the year. Unlike paragraph 163(2)(a), there is no indication in the wording of subparagraph 163(2)(c.2)(ii) that only the adjustment attributable to the False Statement is subject to Penalty. Consequently, we are of the view that in this case the amount of the Penalty in respect of the RMES levied on Mr. A must be calculated from the total income added regardless of the portion that relates to the False Statement.

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(c) false RMES claim by husband does not generate any penalty for resulting overstatement of CCTB, WITB and GSTC by wife, assuming she made no false statement 312
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) - Paragraph 163(2)(a) - Subparagraph 163(2)(a)(i) deduction against increase to income attributable to a false statement can be reduced by QPP contribution increase or by discretionary CCA claim that is wholly related to that income source 303

Subsection 163(2.1)

See Also

Wardlaw v. The Queen, 2019 TCC 199

carryback of false claim to lower-tax rate years generated 70% effective penalty rate

The taxpayer claimed a fictitious business loss of over $357,000, and requested that the excess of the claimed loss over what he could use in the current year be carried back to the prior three years. The s. 163(2) penalty was computed by multiplying the 50% penalty rate by the amount of additional tax that would have been payable by him in the current year if the false $357,000 claim were added to his reported taxable income for the year. Given that this produced a higher effective tax rate than the tax applicable to the taxable income of the prior years to which the carryback had been applied, the penalty worked out to over 70% of the tax he sought to eliminate.

Jorré DJ stated (at paras. 40-41):

[I]t does seem odd that what is apparently meant to be a 50% penalty can, where a loss carry back is involved, become a significantly higher percentage.

The Appellant may wish to consider making an application for a reduction of the penalty and interest under … subsection 220(3.1) … .

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) effective s. 163(2) penalty rate can exceed 50% where there has been a loss carryback 288

Subsection 163(2.21)


Gregory M. Johnson, Wesley R. Novotny, "An Update on Flow-through Shares in the Energy Sector", 2016 Conference Report (Canadian Tax Foundation),12:1-39

General release of claims on implementation of CCAA compromise (p. 12:25)

Generally, a [CCAA] plan that provides a release of claims that specifically contemplates the existence of future claims arising from FTS--and provides that such claims are irrevocably, fully and finally settled, released and discharged--should release and protect a PBC from any claims by the CRA in respect of the FTS. Accordingly, a PBC that incurs insufficient qualifying expenses and subsequently claims protection under CCAA should generally be immune from any tax or penalties levied by the CRA in respect of its FTS agreement.

Likely release of penalties (p. 12:25-26)

There is an exception to the general rules in section 19(2)(a) of the CCAA. The exception excludes from claims compromised by the CCAA proceedings a fine or penalty imposed by a court in relation to an offence, unless the plan explicitly deals with it. ...

...Subsections 163(2.21) and (2.22) can impose a 25 percent penalty in respect of the portion of a renunciation in excess of the renunciation actually available ("the lookback penalty").

..[T]he CCAA exception is unlikely to apply to the lookback penalty because it is not a penalty imposed by a court. It is imposed either by statute or, possibly, by the Tax Court of Canada, and "a court" as defined in section 2 of the CCAA does not include the Tax Court.

Subsection 163(2.4) - False statement or omission

Administrative Policy

14 July 2014 Internal T.I. 2014-0537701I7 F - Voluntary disclosure - T1134 and FAPI

penalties for failure to file T1134s

Representatives of a taxpayer initiated a voluntary disclosure for a taxpayer who had not filed T1134s and who had failed to report foreign accrual property income (or related FAPL or FACL deductions). Without being asked about the penalties that would apply if a disclosure did not meet the requirements of the voluntary disclosure programme, Headquarters noted that a T1134 is required for each foreign affiliate for each post-1995 year, and that a s. 162(7) assessment "must be made by the Minister before the expiration of the normal reassessment period," but referred to the exception for carelessness etc. and the potential three-year extension under s. 152(4)(b)(iii). However, the penalties under ss. 162(10) or (10.1), or s. 163(2.4), which could be engaged only in circumstances of gross negligence etc., generally could be imposed without time limitation.

Subsection 163(3) - Burden of proof in respect of penalties


Kim v. Canada, 2019 FCA 210

Crown satisfied (and could, in any event, have satisfied) the s. 163(3) onus through the taxpayer’s own testimony

The taxpayer, whose only source of income was employment income of under $100K p.a., claimed substantial and fictitious business losses based on an unintelligible theory espoused by tax preparers known as “Fiscal Arbitrators.”

Although the taxpayer’s Notice of Appeal apparently sought confirmation of the deductibility of the denied losses, at the outset of the trial he stated that the only issue before the Court was whether the Crown could provide evidence to support its assessment of gross negligence penalties. The Tax Court Judge then told the taxpayer that he had the burden of convincing the Court that the facts underlying the penalty assessment were incorrect, so as to reverse it. The taxpayer then presented oral testimony of himself and the creator of Fiscal Arbitrators (Mr. Watts), before his appeal was dismissed.

Webb JA noted (at para. 23):

The evidence that the Crown was obligated to introduce could be (and it was) introduced as a result of the testimony of these two witnesses. Although Mr. Kim repeatedly asked the Crown to produce its evidence, he did not appreciate that his own words could be used to establish the facts that would justify the imposition of the penalties.

Webb JA noted that the Tax Court had erred in stating that the taxpayer bore the onus, but then quoted (at para. 20) the finding in Mercure, 2013 FCA 102, at para. 21 that:

The mere fact that a breach of procedural fairness occurred is enough to warrant a new trial. This general rule has only one exception, which is the case in which the question before the court has an inevitable answer … .

Applying this test, Webb JA stated (at para. 24):

[B]ased on the testimony of Mr. Kim and Mr. Watts the outcome was inevitable. There was sufficient evidence introduced through the witnesses to justify the assessment of the penalties. If the taxpayer had not testified on his own account, the Crown could have compelled him to stand up as a Crown witness which, given the extreme facts, would have been sufficient to sustain the penalty.

If the taxpayer had not testified on his own account, the Crown could have compelled him to stand up as a Crown witness which, given the extreme facts, would have been sufficient to sustain the penalty.

Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Rules (General Procedure) - Section 138 - Subsection 138(2) effectively requiring the taxpayer to go first in a s. 163(2) hearing (where the Crown bore the onus) did not change the outcome 386

Lubega-Matovu v. Canada, 2011 DTC 5158 [at 6219], 2011 FCA 265

Although the taxpayer failed to substantiate business deductions claimed over two taxation years, the Court found that the Minister had not met the burden of establishing gross negligence, or even that a misrepresentation had been made. Sharlow J.A. stated (at paras. 26-27):

The Crown's pleadings on this point are sparse. According to the Crown's pleadings in the Tax Court, the penalties (as reassessed after the objection) were imposed on the following basis (my emphasis):

15. In imposing penalties for the 2004 and 2005 taxation years, the Minister relied on the following further facts:

(a) in claiming motor vehicle expenses which he did not incur in the 2004 and 2005 taxation years, the Appellant knowingly, or under circumstances amounting to gross negligence, made... false statements... in his income tax returns for the 2004 and 2005 taxation years.

On a plain reading, this indicates that the penalized amounts were motor vehicle expense deductions that Mr. Lubega-Matovu claims as deductions but did not incur.

The Minister's actual contention was not that the expenses had not been incurred, but that they had not been incurred for business purposes. The Court concluded (at para. 29) that the s. 163(2) penalties "were imposed on the basis of a factual allegation in the pleadings that is not substantiated in the record."

Can-Am Realty v. The Queen, 94 DTC 6069, [1994] 1 CTC 1 (FCTD)

The burden of proof on the Minister with respect to penalties under s. 163(3) did not alter the usual burden upon the taxpayer to show that the Minister's assessment for the underlying tax was wrong. Accordingly, the taxpayer was required to present his evidence first.

The Queen v. Taylor, 84 DTC 6459, [1984] C.T.C 436 (FCTD)

The onus imposed by s. 163(3) on the Minister to establish the facts justifying the assessment of penalty does not relieve the taxpayer of the onus of establishing that the assessment of tax excluding penalty was in error.

Notwithstanding the onus created by section 163, and the imposition of penalties, "the obligation to first adduce evidence in a tax appeal rests with the taxpayer since he is the plaintiff and almost to exclusivity possesses the facts."

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Tax Topics - Statutory Interpretation - Prior Cases 24

See Also

Last v. The Queen, 2012 DTC 1290 [at 3895], 2012 TCC 352

The taxpayer disputed, inter alia, the amount of revenue from various business activities. Woods J ruled against the taxpayer on the disputed revenues, largely because the his testimony was frequently vague, evasive, or implausible. She then stated (at para. 133):

As for the gross negligence penalties, the problem that I have with the imposition of the penalties is that the evidence as a whole does not provide a very complete picture and the Crown has the burden. The income tax appeal turned to a great extent on the appellant not providing sufficient reliable evidence. With respect to GST penalties, the Crown has not presented sufficient evidence to warrant the penalties.

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Tax Topics - General Concepts - Evidence 84

Szollosi Bens v. The Queen, 2011 TCC 240

Webb J. quashed the Minister's motion to dismiss the taxpayer's appeal from assessments under the Income Tax Act and Excise Tax Act, even though the taxpayer had failed to prosecute the appeals with due dispatch (he did not even appear at the hearing for this motion). Because the Minister was seeking to impose penalties under s. 163(2) of the ITA and s. 285 of the ETA, the burden remained with the Minister to prove that penalties were warranted. The taxpayer's inaction was not enough to support an inference that penalties were no longer in issue.

Johnson v. The Queen, 94 DTC 1009, [1994] 1 CTC 2025 (TCC)

In an appeal from a penalty imposed by the Minister pursuant to s. 163(2), the Crown was ordered to proceed with its case first.

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Tax Topics - Income Tax Act - Section 163 - Subsection 163(2) 69

Subsection 163(6)


Joint Committee, "July 27, 2018 Legislative Proposals", 10 September 2018 Submission

Penalty should not apply to s. 94 trust (pp. 6-7)

The s. 163(6) penalty should be reconsidered and, in any event, should not apply to a s. 94 trust (which, absent s. 150(1.2), had no filing obligation).

Subsection 163(7)

Administrative Policy

30 October 2012 Ontario CTF Roundtable, 2012-0462951C6 - Ontario CTF - Penalty Relief

A taxpayer who makes a voluntary disclosure involving taxation years that end more than 10 years earlier will still be subject to late-filing penalties because CRA does not have discretion under s. 162(7) to waive such penalties.

(IC00-1R3 sets out the voluntary disclosure program, under which CRA will not assess penalties such as gross negligence penalties under s. 163(2).)