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Taxation

ESTATES

Written separation agreement was required to permit principal residence designation

Taxpayer passed away in 2005. Taxpayer purchased property in Whistler in 1976. Taxpayer transferred property to husband in 1991 for one dollar, but did not report disposition. Husband sold property in 2003 for $350,000. Gain of property was attributed to taxpayer. For 2003 tax return, taxpayer had not claimed property as her principal residence. Husband passed away in 2011, and had other property designated as principal residence from 1992 until his death. Assessment for 2003 was completed in 2013 and Minister refused to designate Whistler property as taxpayer’s principal residence for reason that another family member had made principal residence designation in respect of another property for same time period. Minister calculated capital gain of $243,009 was made in disposition and was attributed to taxpayer pursuant to s. 74.1(1) of Income Tax Act (Can.). Trustee testified that taxpayer and her husband separated in 1983, and son stated that taxpayer did not live at property and that property was family vacation property. No written separation agreement was found. Estate appealed. Appeal dismissed. Written separation agreement was required by Act and was requirement in circumstance. If taxpayer was still married only one of taxpayer and spouse could designate property as principal residence except if taxpayer and spouse were separated under written separation agreement pursuant to s. 54(c) of Act.
Balanko Estate v. R. (Mar. 19, 2015, T.C.C. [Informal Procedure], Gerald J. Rip J., File No. 2014-3116(IT)I) 250 A.C.W.S. (3d) 526.

Taxation

INCOME TAX

Taxpayers purchased from accountants false donation receipts use to claim tax credits

Taxpayers were husband and wife who made charitable donations. CRA believed that receipts for donations were forged by tax preparers. Minister of National Revenue assessed taxpayers under Income Tax Act for 2005-2009 taxation years. Taxpayers appealed. Appeal dismissed. Taxpayers were not in position to make alleged donations given financial circumstances. Taxpayers’ explanations for donations were not plausible. Husband participated in scheme for five years and matter could not be said to be one of momentary lapse of judgment. Wife could not be absolved of responsibility even if she relied on judgment of others. Taxpayers purchased from their accountants false donation receipts that were used to claim tax credits to which they were not entitled. Taxpayers were not instigators of schemes but could not escape tax liability. Assessment for years outside of regular limitation period was justified as taxpayers knowingly made false representations in respect of donations disallowed by Minister.
Vekkal v. R. (Nov. 18, 2014, T.C.C. [Informal Procedure], Robert J. Hogan J., File No. 2013-882(IT)I, 2013-883(IT)I) 246 A.C.W.S. (3d) 723.

Corporations

DIRECTORS

Investor was shareholder only and not de facto director

Investor was shareholder of taxpayer company that operated pub. Investor signed some documents that indicated he was director of company. Investor signed disclaimer letter to Canada Revenue to unfreeze company’s bank account, after minister issued requirement to pay in respect of unremitted source and GST deductions. Company ceased operations. Minister assessed investor as director for company’s unremitted deductions. Investor appealed. Appeal allowed. Investor did not know he could be considered director and did not execute proper documentation to become director. Proper steps were not taken by company to appoint investor and so under Business Corporations Act (N.B.), investor was not de jure director. Facts established that investor was shareholder only and not de facto director. All major decisions relating to business were made by other persons. Investor was co-signer for business cheques only because two signatures were required and obtained loan to keep company afloat because he was told that otherwise shareholders would lose their investments. Investor signed letter to CRA as owner without even reviewing it. Investor did not even know where account books were located or how to turn lights on when he sought new management. Investor was naive individual whose conduct only demonstrated that he was trying to protect his investment. Investor relied entirely upon preparers of documents that he signed who did not explain nature of documents or financial situation of company.
MacDonald v. R. (Oct. 20, 2014, T.C.C. [Informal Procedure], Eugene P. Rossiter A.C.J., File No. 2013-2568(IT)I, 2013-2569(GST)I) 245 A.C.W.S. (3d) 332.

Courts

CONDUCT OF PROCEEDINGS

Taxpayer could have advanced grounds of appeal without use of extreme statements

Trial judge rendered judgment on merits of taxpayer’s appeal, which was appealed. Judge remained seized with issue of costs and with deciding appropriateness of parties’ proposal for dealing with identification of confidential information. Taxpayer made statements in its appellate factum alleging that judge was untruthful in reasons, containing untruths about judge, and alleging impartiality on judge’s part. On judge’s own motion, judge considered whether he should recuse himself from remaining issues. Motion granted; judge recused himself. Reasonable, fair-minded, fully informed Canadian would entertain doubt that judge could remain able to reach impartial decisions, and would be left with apprehension of bias. Taxpayer could have advanced grounds of appeal without use of unqualified extreme statements which attacked judge’s integrity. Taxpayer wrongly accused judge of being untruthful in order to advance argument that judge was doing something different in his reasons than he said he was doing. While taxpayer had right to challenge evidentiary foundation of judge’s conclusions, taxpayer told clear untruths about judge when taxpayer stated that certain issues were not put to taxpayer during trial and were raised for first time in reasons, and that judge reframed case after trial. Taxpayer, in factum, wrote about judge’s “palpable antipathy” towards taxpayer, and referred to his analysis as being “infected by his pejorative and unfair comments”. Reasonable person reading only these phrases would believe that such complaints might give rise to serious doubt about judge’s impartiality. One error in reasons, appropriately identified in factum, was acknowledged.
McKesson Canada Corp. v. R. (Sep. 4, 2014, T.C.C. [General Procedure], Patrick Boyle J., File No. 2008-2949(IT)G, 2008-3471(IT)G) 244 A.C.W.S. (3d) 234.

Taxation

INCOME TAX

Receipts did not provide breakdown of donation between cash and gift in kind

Minister disallowed tax credits for charitable donations claimed on basis that neither taxpayer made any donations to charity and charitable donation receipts issued to taxpayers by charity did not contain information required necessary to prove gift. Taxpayers appealed. Appeals dismissed. Taxpayers did not prove they made donations claimed. No proof was offered to corroborate their testimony that they made gifts in kind and their testimony alone was too vague to identify specific goods donated or the value that could be attributed to such goods. Amounts shown in tithes records were not reliable. Receipts did not provide breakdown of donation between cash and gift in kind and did not give description of gifts in kind that were allegedly donated. Receipts did not show when gifts in kind were received or what their fair market value was at that time.
Ofori-Darko v. R. (Feb. 17, 2014, T.C.C. [Informal Procedure], B. Paris J., File No. 2013-3652(IT)I, 2013-3809(IT)I) 237 A.C.W.S. (3d) 815.

Customs and Excise

APPEAL

Not open to court to make exceptions to statutory provisions on grounds of fairness

Appellant was approached during H1N1 pandemic to manufacture sanitizing gels. Due to urgency of situation, it started manufacturing sanitizing gels while simultaneously working to complete formulation submission for Canada Revenue Agency (“CRA”) approval. Appellant acknowledged it did not comply with s. 73 of Excise Act (Can.). Minister assessed excise duty payable on packaged spirits under act. Appellant requested court to consider reducing amount of duty assessed, given unintentional nature of offence. Appeal dismissed. Even though appellant had received approval under Natural Health Products Regulations (Can.), at time it manufactured gels, act does not give any exemption on that basis. Court did not have authority to provide relief based on fairness. There was no provision in act that granted judiciary authority to deviate from strict application of its provisions. It was not open to court to make exceptions to statutory provisions on grounds of fairness or equity. Appellant was only assessed duty payable on alcohol and could have faced a harsher situation had Minister imposed penalty. Court was not convinced that appellant was not negligent in failing to comply with act.
International  Custom Pak Inc. v. R. (Feb. 11, 2014, T.C.C. [Informal Procedure], Lucie Lamarre J., File No. 2013-1768(EA)I) 237 A.C.W.S. (3d) 657.

Employment Insurance

APPEAL

Neither worker nor employer able to describe relationship clearly and accurately

Appeal by worker and payer from finding worker was not engaged in insurable employment during three periods on basis worker and payer were related and were not dealing at arms’ length. Payer was roofing company and worker was son of sole shareholder. Payer operated seasonally, usually hiring seven or eight workers each season. Worker had worked for payer since 2001 and incorporated own roofing company of which he was sole proprietor, but worked only for payer. Facts relied on by Minister were that workers sometimes used his own tools, and sometimes used payer’s, had to do jobs arranged by payer and was paid $900 weekly salary, which worked out to $2 per hour more than other workers, to compensate for his supervisory work. Beginning in 2008, worker began to receive additional income for piece work that was performed at same time as his supervisory duties and assisted by other workers. Additional amounts earned by worker were in excess of $70,000 per year and other workers did not receive same piece work payment. It was not disputed that worker’s hourly rate was reasonable. Extra income and compensation for use of truck and equipment to operate second crew were in question. Confusion arose because of worker’s answers on Human Resources self-employment questionnaire. Worker was now clear in his testimony that he had always been employee of payer, he was not operating a roofing company, and confusion arose because he did not know how to qualify his relationship with payer. Appeal dismissed. Facts relied on by Minister were provided by worker and payer through questionnaire and conversations and neither was able to describe their relationship and piece work arrangements clearly and accurately. Relationship was first described as subcontract by worker and appeared as such in payer’s books, during investigative stage worker told officer he was self-employed and paid for piece work, and then at hearing worker claimed piece work actually referred to equipment rentals, a claim not supported by invoices or name of worker’s company. Worker also testified he was employee paid with hourly wage plus commission. Onus was on appellants to establish Minister’s decision was unreasonable and they failed to do so with their differing and inconsistent scenarios. Furthermore, if arrangement of salary plus commission was accurate, it was not an arrangement a non-arm’s length person would enter, given worker’s share was apparently entirely at payer’s discretion.
Michaud v. Minister of National Revenue (Aug. 1, 2013, T.C.C. [Employment Insurance], François Angers J., File No. 2012-457(EI), 2012-440(EI)) 231 A.C.W.S. (3d) 683.
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