Words and Phrases - "wilfully"
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 one taxation year without specifying the particular taxation year in which the income at issue had been received. After quoting various definitions of "wilfuly", Sheppard J. stated (p. 6435):
"A charge of wilful evasion cannot be maintained in the absence of mens rea and it is not enough to say that the taxpayer ought to have known that the receipt in question was income."
| Locations of other summaries | Wordcount | |
|---|---|---|
| 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 |
Her Majesty the Queen, Appeliant, v. George E Paveley, [1976] CTC 477, 76 DTC 6415 (Sask. C.A.)
The trial judge had correctly determined that a deliberate failure by a medical doctor to file income tax returns, without more, did not constitute the wilful evasion of taxes. "The word 'wilfully' as used in the subsection under consideration, carries a distinct connotation of deliberate purpose and ulterior motive." Bayda JA stated (at pp. 485, 486-487):
The word “wilfully”, as used in the subsection under consideration, carries a distinct connotation of deliberate purpose and ulterior motive. … [F]or a conviction to take place under paragraph 239(1)(d) of the Act there must be proof of the actus reus, the “manner”, to use the word of the statute, in which the alleged offence was committed, and also proof of a specific intent, that is to say, proof that the act which constitutes the “manner” was done with a particular purpose— the purpose of evading the payment of tax. …
It is plain … that upon proof of a “wilful refusal” to file an income tax return—the “manner” in which it is alleged the offence under paragraph 239(1)(d) of the Income Tax Act is committed—the Court may, not must, infer that the accused committed the act with the intent to evade payment of taxes. …
The principle of law which states that an inference of intent may, and not must, be drawn from the act in question is equally applicable to an act consisting of a “wilful refusal” to file a return as to one consisting of a simple “failure" to file a return.