Subsection 239(1) - Other offences and punishment
Cases
R. v. Crischuk, 2010 DTC 5138 [at at 7178], 2010 BCSC 1165, aff'd 2010 DTC 5141 [at 7197], 2010 BCCA 391
The defendant, an accountant, filed a false tax return on behalf of another taxpayer, which deducted the taxpayer's entire income, about $48,000,...
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|---|---|---|
| Tax Topics - Income Tax Act - Section 239 - Subsection 239(1) - Paragraph 239(1)(f) | 111 |
See Also
R. v. Eddy, 2014 DTC 5050 [at at 6780], 2014 ABQB 164
The accused brought an application to compel the crown to disclose an extensive list of documents, detailed in a 205-page brief. The documents...
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| Tax Topics - General Concepts - Evidence | reasonable limits on Crown obligations to disclose evidence to accused | 261 |
The Queen v. Goett, 2010 DTC 5129 [at at 7091], 2010 ABQB 100
Strekaf J. found the taxpayer guilty of five charges under s. 239(1)(a) and two charges under s. 239(1)(d) for filing deceptive tax returns. ...
The Queen v. Alberta Hot Oil Services Ltd., 2009 DTC 5903, 2009 ABQB 11
A fine totalling 125% of the tax sought to be evaded (a total of approximately $66,000 over the years in question) and a six-month conditional...
Paragraph 239(1)(a)
Cases
Mariani v The Queen, 2021 ONSC 4731
The trial judge convicted the individual accused (“VM’) and the corporation he owned (“MMFL”), of making a false statement and tax evasion...
R. v. Loosdrepht, 2009 DTC 6088 (BC Prov. Ct.)
The taxpayer showed willful blindness in the filing of nil returns on the basis that, as a natural person, he was not a "taxpayer".
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| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Taxpayer | 63 |
The Queen v. Coffen, 98 DTC 6253 (Ont CA)
There is no requirement that a count of tax evasion relate to a single taxation year.
R. v. Kleysen, 96 DTC 6265, [1996] 2 CTC 201 (Man QB)
The prosecution had failed to satisfy Schwartz J. that the accused taxpayers had understated their incomes by reporting sales of equipment to a...
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| Tax Topics - Income Tax Act - Section 69 - Subsection 69(3) | 72 |
R. v. Q.I.X. Facilities Corp., 91 DTC 5440 (B.C. Prov. Ct.)
Before going on to find that the principals of a corporation supposedly engaged in scientific research had falsified records in order to grossly...
Medina Construction Ltd. v. R., [1982] 1552 (Nfld. D.C.)
Gross negligence in the keeping of accounting records, resulting in the filing of incorrect returns, did not constitute the requisite mens rea of...
R. v. Kresanowski, 83 DTC 5393 (Alta. Q.B.)
A tax-return preparer who knowingly claimed non-existent expenses without the knowledge of his clients had the requisite mens rea.
Articles
Potvin, "Tax Evasion in Canada", 1977 Canadian Tax Journal, p. 229.
Paragraph 239(1)(c)
Cases
Gordon v. Canada, 2019 FC 853
A company (“JAD”) that promoted itself as an SR&ED specialist firm, created backdated records in support of R&D claims that it and its...
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| Tax Topics - General Concepts - Malicious Prosecution | the act of withholding or misrepresenting evidence by a CRA investigator for a malicious purpose may support a viable cause of action | 384 |
Schmidt v. The Queen, 793 DTC 5319 (BCCA)
Statutory declarations that fraudulently overstated the amount of expenditures made on scientific research and that were delivered to Canada Trust...
Paragraph 239(1)(d)
Cases
Samaroo v. Canada Revenue Agency, 2019 BCCA 113
The Samaroos were acquitted in 2011 on all counts of tax evasion respecting their having allegedly skimmed $1.7 million in cash from the...
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|---|---|---|
| Tax Topics - General Concepts - Malicious Prosecution | malicious prosecution claim against CRA founders for failure to establish absence of “reasonable and probable cause” | 377 |
Gagné v. R., 2017 QCCA 788
During 1997, 1998 and 1999, the accused developed and implemented a scheme that allowed taxpayers to withdraw money from their RRSPs, RPPs or...
R. v. Blerot, 2014 DTC 5029 [at at 6668], 2014 SKQB 2
Mills J found that the accused, a self-described "natural person", was guilty of tax evasion for failing to report any income from a business he...
R. v. McMahon, 2013 DTC 5151, 2013 ABPC 239
The charge were dismissed in light inter alia of failure to prove that the accused had ever seen the returns in question.
The Queen v. Tiffin, 2013 DTC 5150, 2013 SKPC 140
The accused was not qualified as a public accountant but operated a bookkeeping and tax preparation service for which he charged up to $500 an...
R. v. Andrus, 2013 DTC 5126 [at at 6188], 2013 BCPC 160
It was not established that the accused had any intent to evade taxes for his 1991 to 1995 years, as small amounts were due and source deductions...
R. v. Fischer, 2013 DTC 5125 [at at 6180], 2013 BCPC 154
R. v. Porisky, 2012 DTC 5037 [at at 6731], 2012 BCSC 67
The defendants ran "The Paradigm Education Group," a business in which they conducted self-help seminars and set up teachers to conduct such...
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| Tax Topics - Other Legislation/Constitution - Federal - Criminal Code - Section 464 | 247 |
The Queen v. Leo-Mensah, 2011 DTC 5003 [at at 5505], 2010 ONCA 139
The accused taxpayer provided false charitable receipts to his clients in order to generate $3.28 million in fraudulent tax refunds. He was...
R. v. Klundert, 2004 DTC 6609 (Ont. CA)
The trial judge had erred in instructing the jury that a person who refused to pay his taxes as a protest could not be convicted of evading the...
R. v. Cardoso (1999), 180 DLR (4th) 479 (Que. CA)
The appellant, who was the president of a mineral exploration company, had the company renounce fictitious exploration expenditures to purchasers...
R. v. Cancor Software Corp., 92 DTC 6090 (Ont GD), aff'd 94 DTC 6102 (Ont CA)
Before rejecting a submission for the accused that a charge for "wilful evasion or attempt to evade payment of taxes" was void for vagueness,...
R. v. Hutton, [1990] 2 CTC 258 (Alta. C.A.)
The taxpayer fraudulently caused his employer to pay invoices for work on renovation to his home in 1983 and 1984. After the renovations were...
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| Tax Topics - General Concepts - Effective Date | 87 |
R. v. Wolf, 84 DTC 6033 (BCCA)
The appellant had the requisite mens rea when, at a time when he was in funds sufficient in his belief to meet his liability to the income tax...
Medicine Hat Greenhouses Ltd. v. R., 81 DTC 5100, [1981] CTC 141 (Alta. C.A.)
The reasoning of a Queen's bench justice - that once the Crown establishes a prima facie case that the accused deducted personal expenses of its...
R. v. Medicine Hat Greenhouse Ltd., 80 DTC 6031 (Alta. PC), rev'd ibid.
The requisite mens rea was not present respecting the deduction by the taxpayer of expenses of an allegedly personal nature, given that similar...
R. v. Pavely, 76 DTC 6415, [1976] CTC (Sask. C.A.)
A deliberate failure to file income tax returns, without more, did not constitute the wilful evasion of taxes. "The word 'wilfully' as used in the...
Ciglen v. R., 70 DTC 6118, [1970] S.C.R. 804
The trial judge committed an error of law when he indicated that a falsification of records of a corporation, in order to attribute transactions...
See Also
The Queen v. Smith, 2012 DTC 5144 [at at 7327], 2012 SKPC 116
Kovatch J. found the taxpayer guilty of failing to report $462,091 in income, which resulted in losses that eliminated his taxes payable for five...
R. v. Penner, 2010 DTC 5086 [at at 6874], 2010 MBPC 1
Mistakes involving income earned by the taxpayer and a loss claimed by his corporation did not reflect willful blindness on the part of the...
R. v. Atlantic Technologist Ltd., 2008 DTC 6686 (Nfld. Prov. Ct)
In finding that the individual accused's argument that he was not an officer, director or agent of the corporate accused was irrelevant, Gorman,...
R. v. Coffen, 97 DTC 5552, [1998] 3 CTC 285 (Ont. Ct. J. (G.D.))
The trial judge had erred in law: by stating that wilful suppression of income in a return was an offence under s. 239(1)(d) even if turned out...
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| Tax Topics - General Concepts - Onus | 56 | |
| Tax Topics - Income Tax Act - Section 150 - Subsection 150(1) | 30 |
R. v. Pomerleau, 96 DTC 6512 (Ont. P.D.)
The accused was guilty under s. 239(1)(d) given that during a period of over six years he had not filed any returns, had taken no steps to contact...
R. v. Dipasquale, 93 DTC 5389, [1994] 1 CTC 131 (Ont. G. D.)
After referring to a finding of the Provincial Court judge that the accused had underreported rental losses on his returns, Sheppard, J. found...
R. v. Castelli (1992), 11 OR (3d) 170 (Ont. Ct. G. D.)
In the absence of evidence that alleged kick-back payments made by the accused were reasonable or necessary to generate income, it followed that...
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| Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Public Policy | 55 |
R. v. Fogazzi, 92 DTC 6421, [1992] 2 CTC 321 (Ont. C.J. (G.D.)), rev'd 93 DTC 5183 (Ont. CA)
Various counts in an indictment were incorrectly drawn in that they charged the accused of evasion of the payment of tax in respect of more than...
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| Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Business | 81 | |
| Tax Topics - Income Tax Act - Section 3 - Paragraph 3(a) | 109 | |
| Tax Topics - Income Tax Act - Section 9 - Timing | 42 |
R. v. Landes, [1988] 1 CTC 124 (Queb. Ct. S.P.)
Although the assumption of the accuseds that their pre-1972 real estate gains were capital gains "may have been illogical, naive, unsophisticated...
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| Tax Topics - Income Tax Act - Section 242 | 27 | |
| Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Real Estate | 107 |
R. v. Redpath Industries Ltd., 84 DTC 6349, [1984] CTC 483 (Que. S.C.)
A specific charge for failure to declare income or taxable income cannot be sustained where the taxpayer properly disclosed the full amount of the...
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| Tax Topics - General Concepts - Tax Avoidance | 32 | |
| Tax Topics - Statutory Interpretation - Hansard, explanatory notes, etc. | 32 |
R. v. Zmeis, 84 DTC 6295 (B.C. Prov. Ct.)
The Crown failed to establish beyond a reasonable doubt that the accused suppressed income from the restaurant business of his company by failing...
The Queen v. Robson, 79 DTC 5198 (Sask. Prov. Ct.)
The keeping of receipts and bank deposits (rather than hiding such evidence of income which has not been reported) does not in itself explain away...
R. v. Parker Car Wash Systems Ltd., 77 DTC 5327 (S.C.O.)
The taxpayer corporation was caused by an individual ("Livingston") who owned 50% of its shares and managed it on a day-to-day basis, to pay...
R. v. Myers, 77 DTC 5278, [1977] CTC 507 (Alta. Dist. Ct.)
S.239(1)(d) refers to "taxes imposed" rather than "taxes payable" (as defined in s. 248(1)), and it accordingly is not necessary for the...
Administrative Policy
87 C.R. - Q.43
Where a taxpayer has not filed tax returns for 15 to 25 years but wishes to make voluntary disclosure, returns should be prepared for the current...
IC 85-1R "Voluntary Disclosures"
IC 73-10R3 "Tax Evasion"
Articles
Robertson, "Revenue Canada Pursues Annually More Than 10,000 Tax Evasions 'Leads'", Taxation of Executive Compensation and Retirement, July/August 1990, p. 310
Discussion of investigation approach and of voluntary disclosure procedure.
Paragraph 239(1)(f)
Cases
R. v. Crischuk, 2010 DTC 5138 [at at 7178], 2010 BCSC 1165, aff'd 2010 DTC 5141 [at 7197], 2010 BCCA 391
The defendant, an accountant, filed a false tax return on behalf of another taxpayer, which deducted the taxpayer's entire income, about $48,000,...
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| Tax Topics - Income Tax Act - Section 239 - Subsection 239(1) | 204 |
R. v. Collins, 85 DTC 5174, [1985] 1 CTC 342 (Ont CA)
The relevant time for determining "the amount of the tax that was sought to be evaded" is the date upon which the taxpayer was charged with the...
R. v. Oriental Bowl Ltd., 83 DTC 5342 (Sask. PC)
For the purpose of calculating the penalty, the amount of tax evaded includes a reduction in the prior year's taxes due to the carry-back of...
Sheridan Warehousing Ltd. v. R., 83 DTC 5095, [1983] CTC 90 (FCTD)
It was stated, in connection with a case where the accused had corroborated the V-day value of land with false documentation, that: "I do not...
Paragraph 239(1)(g)
Cases
R. v. Lang, 90 DTC 6151 (B.C. Prov. Ct.)
MacDonald PCJ. applied the standard that general deterrence is the dominant principle in determining the sentence in the case of a fraud on the...
Subsection 239(2) - Prosecution on indictment
Cases
Darbishire v. The Queen, 83 DTC 5164 (Ont. Co. Ct.)
A decision by the Crown not to elect does not constitute a deprivation of an accused's right to a jury trial as set out in s. 11(f) of the...
See Also
R. v. Keith Goett, 2010 DTC 5136 [at at 7173], 2010 ABQB 187
The taxpayer was convicted of evading taxes in 2000, for which he was sentenced in part to a fine of 100% of the amount he sought to evade. In...
German v. Major (1985), 20 DLR (4th) 703 (Alta. C.A.)
A prosecutor acting in good fatih was, at least before the Charter, not liable in tort to an accused for the conduct of the trial in any way other...
Subsection 239(3) - Penalty on conviction
See Also
Besner v. The Queen, 2008 DTC 4299, 2008 TCC 404
A CRA auditor referred the taxpayer's file to the Investigative Division of the CRA, then the Minister assessed the taxpayer for a gross...
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| Tax Topics - Statutory Interpretation - Noscitur a Sociis | 101 | |
| Tax Topics - Statutory Interpretation - Ordinary Meaning | 43 |
Subsection 239(4) - Stay of appeal
Cases
Deutsch v. The Queen, 83 DTC 5398, [1983] CTC 369 (FCA)
An "appeal" for the purposes of this section includes a proceeding commenced by a statement of claim filed in the Federal Court. Variations in the...
Popovich Equipment Co. v. The Queen, 79 DTC 5079, [1979] CTC 65 (FCA)
S.239(4) does not authorize a stay of an appeal based on a prosecution of a person other than the appellant.