BETWEEN:
and
Appeal heard on September 9, 2016, at Toronto, Ontario, with written submissions filed by the Respondent on November 23, 2016 and by the Appellant on December 19, 2016.
Appearances:
AMENDED JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2008 taxation year is dismissed, with costs to the Respondent, in accordance with the attached Reasons for Judgment.
This Amended Judgment is issued solely to correct the spelling of the name of counsel for the Appellant.
Docket: 2013-1140(IT)G
BETWEEN:
JENNIFER ARBUCKLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on September 9, 2016, at Toronto, Ontario, with written submissions filed by the Respondent on November 23, 2016 and by the Appellant on December 19, 2016.
Before: The Honourable Justice B. Paris
Appearances:
|
Counsel for the Appellant: |
Duane R. Milot |
|
Counsel for the Respondent: |
Rishma Bhimji |
AMENDED JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2009 taxation year is dismissed, with costs to the Respondent, in accordance with the attached Reasons for Judgment.
This Amended Judgment is issued solely to correct the spelling of the name of counsel for the Appellant.
Signed at Toronto, Ontario, this 12th day of October 2017.
“B. Paris”
Paris J.
2013-1140(IT)G
BETWEEN:
JENNIFER ARBUCKLE,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] These are appeals from reassessments of the Appellant’s 2008 and 2009 taxation years. In those years, the Appellant participated in a tax avoidance program known as the “Detax” program.
[2] The Minister of National Revenue (the “Minister”) disallowed the Appellant’s claim for business losses of $209,664.62 and $167,111.43 in those years respectively, and disallowed the Appellant’s request to carry back unused balances of those losses to apply to her 2005, 2006 and 2007 taxation years. The Minister also imposed gross negligence penalties under subsection 163(2) of the Income Tax Act (the “Act”) in respect of the disallowed amounts.
[3] The Appellant admits that she did not carry on a business or have any business losses in the years under appeal and is only disputing the imposition of the gross negligence penalties.
[4] She takes the position that she was duped by the person who prepared and filed her tax returns and who convinced her to participate in the Detax program. While she believed that she would be entitled to large tax refunds under the program, she says that she did not understand that fictitious business losses would be reported, and claims that the tax preparer added the figures for the business losses and loss carry backs without her knowledge after she had signed the returns in issue. She maintains that she took all reasonable steps to investigate the tax preparer and the program he was promoting and therefore that her conduct in relying on him to prepare her returns did not amount to gross negligence on her part.
[5] Three witnesses testified at the hearing: the Appellant, her father, Barry Arbuckle, and Jolaine Guignard, a friend of the Appellant.
Relevant Statutory Provisions
[6] In order to impose the penalties under subsection 163(2), the Minister has the onus to show that the Appellant made false statements in her 2008 and 2009 tax returns and that she did so knowingly or in circumstances amounting to gross negligence. The relevant point in time for the determination is the time of filing of the returns. The applicable statutory provisions read as follows:
163(2) False statements or omissions. Every person who, 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 a return, form, certificate, statement or answer (in this section referred to as a “return”) filed or made in respect of a taxation year for the purposes of this Act, is liable to a penalty of the greater of $100 and 50% of the total of
(a) the amount, if an, by which
(i) the amount, if any, by which
(A) the tax for the year that would be payable by the person under this Act
exceeds
(B) the amounts that would be deemed by subsections 120(2) and (2.2) to have been paid on account of the person’s tax for the year
if the person’s taxable income for the year were computed by adding to the taxable income reported by the person in the person’s return for the year that potion of the person’s understatement of income for the year that is reasonably attributable to the false statement or omission and if the person’s tax payable for the year were computed by subtracting from the deductions from the tax otherwise payable by the person for the year such portion of any such deduction as may reasonably be attributable to the false statement or omission
exceeds
(ii) the amount, if any, by which
(A) the tax for the year that would have been payable by the person under this Act
Exceeds
(B) the amounts that would be deemed by subsections 120(2) and (2.2) to have been paid on account of the person’s tax for the year had the person’s tax payable for the year been assessed on the basis of the information provided in the person’s return for the year,
. . .
163(3) Burden of proof in respect of penalties. Where, in an appeal under this Act, a penalty assessed by the Minister under this section or section 163.2 is in issue, the burden of establishing the facts justifying the assessment of the penalty is on the Minister.
Facts
[7] The Appellant is 37 years old and has a diploma in human resources management from Durham College. While attending college, she worked part‑time as a customer service representative at General Motors. She graduated in 2004 and has since that time worked for the Ontario government, first in the Human Resources Department at the Ontario Ministry of Finance and, more recently, at the Ontario Ministry of Government Services.
[8] The Appellant first began filing tax returns at age 17 in 1997. Her father prepared all of her tax returns for her up to 2005.
[9] For the 2006 to 2009 taxation years, she engaged Muntaz Rasool to prepare and file her returns. She was introduced to Rasool by her father. Mr. Arbuckle had received a large tax refund for his 2005 taxation year that year as a result of participating in a tax program known as “Destiny Health” which Rasool had promoted. Mr. Arbuckle had been referred to Rasool by co-workers who had used Rasool’s services and received large tax refunds.
[10] The Appellant testified that she understood Rasool to be an accountant who had previously worked at H&R Block and who had prepared tax returns for many years. She also said that her father told her that Rasool was very knowledgeable about the Income Tax Act. She admitted that she had never checked into his professional credentials, although she did say that she did internet searches of his name on a regular basis each year that she used his services.
[11] At her first meeting with Rasool in December 2006, she agreed to participate in another tax program he was promoting called “StockLogics” which was designed to produce large tax refunds.
[12] It appears that the Appellant claimed a loss related to StockLogics in her 2006 tax return and obtained a tax refund of approximately $10,000 as a result. The Appellant’s father also participated in the program that year, too.
[13] In December 2007, the Appellant met with Rasool regarding the preparation of her 2007 return and agreed to participate in a new tax program he was promoting called “Stock Market Live”. As a result, the Appellant obtained a tax refund of approximately $13,000 for her 2007 taxation year.
[14] Both Ms. Guignard and the Appellant’s father also participated in the Stock Market Live program and received refunds that year. Ms. Guignard said that she was put in touch with Rasool by the Appellant in December 2007 and that after meeting with him she checked Ontario government databases at her work to check that Rasool was “legit” and that he was using his real name. She was able to find out his name, address, driving record, and that the house at the address he was using belonged to his spouse. However, she did not make any attempt to verify Rasool’s credentials as an accountant.
[15] In December 2008, the Appellant met with Rasool to discuss another program he was promoting for the 2008 taxation year, which she said he called the “Detax” program. The Appellant testified that she met Rasool at the home of her friend, Jolaine Guignard, who was also interested in participating in the program. During the meeting, which the Appellant said lasted a couple of hours, Rasool explained to them that there was a loophole in the Income Tax Act that would allow them to get a large tax refund because of an account held by the Canada Revenue Agency (the “CRA”) for each person born in Canada. He said that every baby born in Canada had a serial number on the back of his or her birth certificate that relates to an account number with the government and that the account was opened by the CRA and that money was put into it and that the government was earning interest on the money. He said that people could withdraw money from this account against their income to receive a refund every year but that nobody knew about the loophole and no one claimed the refunds. The Appellant also understood from Rasool that the loophole was based on each person having two separate identities from the time of birth. She testified that Rasool convinced her and Guignard that they could get a large tax refund as a result of the loophole.
[16] The Appellant testified that she and Guignard asked Rasool many questions at the meeting and that after the meeting she did a lot of on-line research about the Detax program. She specifically said that she searched the term “Detax” and that a lot of information came up validating what Rasool had told her and Ms. Guignard. She also said that she talked to her father about the program. He had also spoken to Rasool about it and had spent over five hours reviewing material on a website called “detaxcanada.org” and had contacted the operator of the website, Eldon Warman by email. The Appellant said that her father told her that it looked like a good program and that there should not be any issues with it. As a result, she said that she decided to participate in the program.
[17] This testimony of the Appellant was contradicted in a number of respects by that given by Ms. Guignard and the Appellant’s father. Both of those witnesses said that Rasool never used the name “Detax” for the program and that it was the Appellant’s father who came across the name when he was trying to find out more about what he said Rasool called the “Pay no tax” program. He conducted this research in late March 2009 and said that he did not discuss what he learned from it with the Appellant until a couple of weeks later, after she had already decided to participate in the program.
[18] The Appellant’s father, himself, decided not to participate in it because, he said, he had “already made enough money” from Rasool’s programs in other years. In cross-examination, he admitted, though, that at some point before March 2009 he had been reassessed to disallow the Stock Market Live loss he had claimed in his 2007 taxation year.
[19] The Appellant also testified that she checked to see if there was anything about the program on the CRA website, but she did not find anything to indicate it might be a scam. Ms. Guignard thought that it was the Appellant’s father who had gone on the CRA website, rather than the Appellant.
[20] When the Appellant met with Rasool in late March 2009 to review and sign her return, she said she did a quick “page flip” and signed where indicated. She said that when she reviewed the return she did not see the entry for the business loss of $209,664.62, the Request for Loss Carryback form or the Statement of Agent Activities which purported to set out the calculation of the business loss.
[21] The Statement of Agent Activities shows the Appellant apparently acting as agent for herself as principal, and paying amounts to herself and collecting amounts from herself in the course of the supposed activity. It contains statements regarding “T-4a’s (sic) and other money reported by 3rd parties and collected as agent” and “Money Collected as Agent for Principal and reported by third parties”. It also states that “This Statement, prepared by the principal, is your original receipt!” It is quite obvious from even a brief look that the information in the form is nonsense.
[22] Rasool filed the return and the Appellant received a refund of approximately $15,000 for her 2008 taxation year.
[23] On November 13, 2009, the CRA sent a letter to the Appellant requesting information about the business loss claimed for her 2008 taxation year. She forwarded the CRA’s request for information about the loss to Rasool, along with an email message in which she asked Rasool whether it would delay receipt of her “income tax money”, which I take to mean the refunds that she expected as a result of her pending claim to carry back losses to her earlier tax years. She also asked for an explanation of what was happening with the CRA and said she wasn’t sure she understood what was going on.
[24] Rasool provided a letter to the Appellant to send to the CRA in response to the request for information and she signed it and faxed it to the CRA on December 11, 2009. That letter contained typical Detax language, including statements that the Appellant was “not a ‘person’ in Canada, nor in a Province, and thus, not subject to any laws of Canada” , that “JENNIFER ARBUCKLE is a fictional entity with no physical body or mind”, that she was “a free will adult man” and that:
All assets and property held in the name of JENNIFER ARBUCKLE, or any variation of that name thereof, the trustee in trust and agent in commerce are for, are the property under claim in equity of the free will adult man, commonly called Jennifer of the Arbuckle family, the principal and beneficiary of the said trust.
[25] The Appellant sent the letter to the CRA despite not understanding what it meant.
[26] In December 2009, she met Rasool concerning her 2009 tax return and the same program as the previous year. She testified that, since there were no changes to the program, there was not much discussion about it, and she simply agreed to participate in the program once again.
[27] Subsequent to their meeting, the Appellant said she did another on-line search of Rasool and the Detax program and she visited the CRA website. She said she found nothing that would have alerted her to any problem with the program.
[28] On March 5, 2010, the CRA responded to the letter that the Appellant had sent in on December 11, 2009. The CRA proposed to disallow the 2008 business loss and loss carry back request. The letter also indicated that consideration was being given to imposing gross negligence penalties.
[29] On March 10, 2010, the Appellant met with Rasool to review and sign her 2009 return. She said that the review and signing process for the return was much the same as the previous year. Again, she said she did not see the business loss claim, or the Loss Carryback Request form or Statement of Agent Activities that were attached to her return that was filed.
[30] On April 2, 2010, the Appellant sent in another letter to the CRA that Rasool had given her, in response to the CRA’s letter of March 5, 2010. That letter as well contained nonsensical Detax statements.
[31] On June 10, 2010 the Minister reassessed the Appellant for her 2008 taxation year to disallow the business loss and the request to carry back losses to her 2005, 2006 and 2007 taxation years and gross negligence penalties were imposed. Her return for 2009 was assessed on March 3, 2011. The business loss and loss carry back request were disallowed and gross negligence penalties were imposed.
Position of the Respondent
[32] The Respondent’s counsel submits that the evidence demonstrates that the Appellant was wilfully blind to the claims for fictitious business losses made in her 2008 and 2009 tax returns and the request to carry back the losses. Alternatively, the Respondent takes the position that the Appellant was grossly negligent in failing to adequately review the returns prepared for her by Rasool prior to filing.
[33] Counsel points to the Appellant’s education and experience, to the minimal review she made of her returns, to her failure to make inquiries into how the Detax program worked, to her blind acceptance of the incomprehensible explanation given by Rasool concerning the program, and to the magnitude of the losses claimed, as demonstrative of the Appellant's gross negligence.
Position of the Appellant
[34] The Appellant's counsel submitted that, while wilful blindness on the part of a taxpayer to misrepresentations made in the taxpayer’s return is sufficient to support a finding of gross negligence within the meaning of subsection 163(2), the conduct of the Appellant in this case does not rise to that level. He argued that the Supreme Court of Canada had, in the case of Sansregret v.The Queen, [1985] 1 S.C.R. 570, set out a narrow approach to wilful blindness, stating that, in order for a court to find wilful blindness, the evidence must be such that “it can almost be said that the defendant actually knew” and that the court must be satisfied that “the defendant intended to cheat the administration of justice.” The Supreme Court described the doctrine of wilful blindness as a rule of very limited scope.
[35] Counsel maintained that a finding of wilful blindness should only be made in extreme cases since it is intended to be an equivalent to actual knowledge by taxpayer, and that the evidence must therefore disclose deliberate conduct or deliberate ignorance on the part of the Appellant.
[36] The Appellant’s counsel argued that the Respondent has not established that the Appellant was wilfully blind to the false statements made in her returns because it has not been shown that the Appellant set out to cheat the administration of justice or was deliberately ignorant of the need for some inquiry into the basis for the business loss and loss carry back claims made in her returns.
[37] In his view, the decision of this Court in Torres v. The Queen, 2013 TCC 380, which also dealt with the application of gross negligence penalties in the case of a claim for fictitious business losses, misstates the test for wilful blindness and applies a lower standard than the test as enunciated by the Supreme Court of Canada in the case of Sansregret.
[38] Counsel submitted that even if the Court were to apply the Torres factors for determining wilful blindness, the evidence in this case would still point away from a finding that the Appellant was wilfully blind. Counsel stated that the Appellant’s lack of sophistication in tax matters meant that she was unable to understand the significance of entries on her tax return forms, and that she did not know enough to know she had to inquire. In any event, it could not be said that she closed her eyes to the false statements because they were added by Rasool after the Appellant reviewed the returns.
[39] In addition, she took steps to investigate Rasool and the Detax program and even checked the CRA website for references to the program. She therefore exercised reasonable diligence to ensure the information on her return was correct. Counsel maintained as well that there were no flashing red lights in the case of Rasool because he had previously prepared returns for the Appellant’s 2006 and 2007 taxation years that were assessed as filed and which had not been reassessed at the time the returns in issue were filed.
[40] The Appellant believed that the fees charged by Rasool were justified by the large refunds he obtained for her, and by the additional legal and accounting services he provided. Further, the refund received by the Appellant was consistent with what she had received for the 2006 and 2007 years. Taking all of these factors into account, the Appellant’s trust in Rasool was understandable. Finally, counsel stated that, while the false statements in the Appellant’s returns were blatant, the evidence showed that the false statements were added after the Appellant reviewed and signed the returns.
Analysis
[41] Since the Appellant admits that the business loss claims and loss carry back requests in her 2008 and 2009 tax returns constituted false statements, the only issue before the Court is whether the Appellant made those statements knowingly or under circumstances amounting to gross negligence.
[42] The most frequently quoted definition of gross negligence in relation to subsection 163(2) of the Act is that found in the case of Venne v. The Queen, 84 D.T.C. 6247. At paragraph 37 of that decision, Strayer J. wrote that gross negligence “must be taken to involve greater neglect than simply a failure to use reasonable care. It must involve a high degree of negligence tantamount to intentional acting, an indifference as to whether the law is complied with or not...”
[43] In discussing the concept of gross negligence in subsection 163(2) of the Act, the Supreme Court of Canada in Guindon v. The Queen, 2015 SCC 41 (at paragraph 60), cited the following comments of this Court in Sidhu v. The Queen, 2004 TCC 174:
Actions “tantamount” to intentional actions are actions from which an imputed intention can be found such as actions demonstrating “an indifference as to whether the law is complied with or not”. . . . The burden here is not to prove, beyond a reasonable doubt, mens rea to evade taxes. The burden is to prove on a balance of probability such an indifference to appropriate and reasonable diligence in a self-assessing system as belies or offends common sense. [para. 23]…
[44] It has been held that in drawing the line between “ordinary” negligence or neglect and “gross” negligence, a number of factors have to be considered:
(a) the magnitude of the misrepresentation in relation to the income declared,
(b) the opportunity the taxpayer had to detect the error,
(c) the taxpayer’s education and apparent intelligence,
(d) the genuine effort to comply.
[45] No single factor predominates. Each must be assigned its proper weight in the context of the overall picture that emerges from the evidence (DeCosta v. The Queen, 2005 TCC 545.)
[46] For the following reasons, I am satisfied that the Respondent has succeeded in showing on a balance of probabilities that the Appellant was grossly negligent in claiming large fictitious business losses on her 2008 and 2009 tax return, and in requesting loss carry back to her earlier taxation years.
[47] The evidence shows that the Appellant signed both her 2008 and 2009 returns after only a cursory review. She did what she referred to as a “page flip” of the returns, stopping only to sign where she was directed to do so, and not stopping to look at the entries made on the return. In her own words:
THE WITNESS: I did a quick check, you know, just to make sure my name was on there, and then, where I saw -- where, he told me, he had a sticky note of where to sign, and I would sign it. It was a quick review of the return. That's just how I've always done it. I always -- I don't understand the return. I don't know what the numbers represent, so I don't really look at that because I just -- this is what you're supposed to do, and you're supposed to sign it and send it off.
MR. MILOT: Did you do a page flip of the return?
THE WITNESS: Yes, like a quick flip of the pages because there were a few areas that you had to sign.
(page 32 transcript)
[48] In proceeding as she did, she abdicated her responsibility for the correctness of the information contained in the returns, and was indifferent as to whether those returns complied with her obligations under the Act. In other cases involving penalties under subsection 163(2), this Court has repeatedly found that a taxpayer’s failure to review a return before filing it constituted gross negligence. For example, in Brown v. The Queen, 2009 TCC 28, Bowie J. stated at paragraph 20 that:
Quite apart from all of that, in respect of the gross negligence penalties under the Income Tax Act, the Appellant in his own evidence early on made it clear that he signed his returns for each of the four years under appeal without having paid the least attention to what income was included in them and what expenses were claimed in them. He said that he kept the records that he kept, prepared spreadsheets from them and gave them to a tax preparer who, in each year, prepared the returns for him based on the material that he gave her. We did not hear from her on that, but taking that statement at its face value, it still leaves the Appellant with an onus to look at the completed return before signing it and filing it with the Minister. The declaration that the taxpayer makes when he signs that form is,
I certify that the information given on this return and in any documents attached is correct, complete and fully discloses all my income.
To sign an income tax return and make that certification without having even glanced at the contents of the return, because that is what I understood his evidence to be is of itself, in my view, gross negligence that justifies the penalties.
[49] Similarly, in Bhatti v. The Queen, 2013 TCC 143 at para 30, C. Miller J. wrote:
…It is simply insufficient to say I did not review my returns. Blindly entrusting your affairs to another without even a minimal amount of verifying the correctness of the return goes beyond carelessness. So, even if she did not knowingly make a false omission, she certainly displayed the cavalier attitude of not caring one way or the other…
[50] Had the Appellant taken the time to read through her returns for 2008 and 2009, it would have been obvious to her that she was claiming business losses, even though she acknowledged that she did not carry on any business. It would also have been obvious that the claim for business losses and the information set out on the Statement of Agent Activities could not be reconciled with the explanation of the tax loophole given to her by Rasool as the means of obtaining the large tax refunds he promised her. In no way does the Statement of Agent Activities appear to be a claim against a secret account registered under the serial number on the back of the Appellant’s birth certificate.
[51] I do not accept counsel’s suggestion that the false business loss claims and loss carry back requests were added by Rasool after the Appellant reviewed and signed her 2008 and 2009 tax returns. There is little credible evidence upon which to draw the conclusion that Rasool altered the returns without the Appellant's knowledge.
[52] First, the Appellant herself admitted that she paid little attention to what was in the returns when she reviewed them. She flipped quickly through the pages and apparently only stopped at the places where she needed to sign. Also, the fact that she signed the loss carry back request forms that were attached to both her 2008 and 2009 returns directly contradicts her statements that she had not seen those forms. Therefore her testimony that she did not recall seeing the business loss claims and related statements, or the loss carry back requests before her returns were filed carries little weight.
[53] It also seems to me, that if the Appellant had not seen the business loss claimed on her 2008 return, she would have brought this up to Rasool after receiving the November 13, 2009 CRA letter questioning the business loss claim. In court, the Appellant was clear that she had never carried on a business, and there was no suggestion that she did not know what a business was when she signed the returns in issue, and I infer that she knew when she received the November 13, 2009 letter that she had not carried on a business in 2008. However, in her email to Rasool attaching the CRA letter, she does not express concern or surprise that a business loss had been claimed, nor does she suggest that it had been done without her knowledge.
[54] I would have expected that, if the Appellant had been unaware of the business loss and loss carry back requests made in her 2008 return, she would have brought it to the attention of the CRA as soon as she found out. Instead, it appears that she proceeded to have Rasool prepare her return for 2009 in the same manner as he had done for 2008. The Appellant’s testimony that there was little discussion of the Detax program between herself and Rasool when she met with him in December 2009 seems hard to reconcile with her recently having learned that he had claimed business losses in her return without her knowledge.
[55] Finally, there was no evidence to show that, prior to the hearing, the Appellant had ever represented that Rasool had altered her returns after she signed them. I note that, in a letter to the CRA written by the Appellant's representative in the course of the objection process, the representative stated that “the company Detax, who originally prepared Jennifer Arbuckle’s 2009 tax return assured Ms. Arbuckle that the business venture she was claiming was legal.” This is clearly inconsistent with the Appellant's position with the losses were claimed without her knowledge.
[56] In addition to the difficulty I have accepting the Appellant’s testimony that she believed that the loss claims were added to her return without her knowledge, other inconsistencies between her testimony and that given by her father and by Ms. Guignard lead me to question the reliability of the Appellant’s testimony generally concerning her investigations into Rasool and the programs he was promoting. I find it difficult to accept her assertions that she repeatedly searched Rasool’s name on the internet. This would appear to show that the Appellant was suspicious of Rasool throughout the period in issue, but is inconsistent with her blind acceptance of the explanation he gave concerning the secret account linked to her birth certificate. It is also inconsistent with the Appellant’s assertions that she had no reason not to trust Rasool when he prepared her returns.
Summary
[57] In summary, the fictitious losses and loss carry backs were many times the amount of the Appellant’s income for the years in issue, she had ample opportunity to review the returns in which the claims were made, she is educated and from my observation, of at least average intelligence. Finally, in failing to review the entries on her returns, she made no effort to comply with the requirements of the Act that the information in her returns be complete and accurate.
[58] Given my conclusions set out above, it is not necessary for me to address the parties’ submissions relating to the issue of wilful blindness.
[59] For all of these reasons, the appeals are dismissed, with costs to the Respondent.
Signed at Montreal, Quebec, this 18th day of September 2017.
“B.Paris”
Paris J.
|
CITATION: |
|
|
COURT FILE NOs.: |
2013-1140(IT)G
|
|
STYLE OF CAUSE: |
|
|
PLACE OF HEARING: |
|
|
DATE OF HEARING: |
|
|
REASONS FOR JUDGMENT BY: |
|
|
DATE OF JUDGMENT: |
APPEARANCES:
|
Counsel for the Appellant: |
Duane R. Milot |
|
Counsel for the Respondent: |
Rishma Bhimji |
COUNSEL OF RECORD:
|
Name: |
|
|
Firm: |
Milot Law Toronto, Ontario
|
|
For the Respondent: |
Nathalie G. Drouin Deputy Attorney General of Canada Ottawa, Canada
|