http://decisions.fct-cf.gc.ca/site/fc-cf/decisions/en/item/65079/index.do 
Cogesco Services Limited v. Canada (Attorney General[1]) ( December 11, 2013) is a case where penalties and interest were levied against a non-resident corporation that had no tax payable. The corporation asked for relief from the penalties and interest because at the operative time a Tax Court decision dealing with a similarly situated taxpayer had held that penalties and interest were not exigible. Subsequent to the taxation years in question a decision of the Federal Court of Appeal had reached a different conclusion:
[7] This case is very simple. The taxpayer was assessed a penalty of $2,500 per taxation year where the tax return was not completed and produced, the whole under subsection 162(2.1) of the Act. In a first request for relief, the relief was for $15,000 (i.e. six taxation years: 2005-2010) and nearly $3,000 in interest. The applicant stated in the request that it was a non-resident corporation that claimed that it did not have to file tax returns. It added that it never intended to avoid its tax obligations and, believing that the fact that it had losses was sufficient to not have to make tax returns, it requested that the penalties not be imposed on it. The CRA answered on February 7, 2012, that it did not qualify for relief since it is only possible in cases where circumstances out of the taxpayer’s control prevent it from fulfilling its tax obligations.
[8] A second request was made in March 2012 for $12,500 and nearly $3,000 in interest. The amount in penalties for which relief was requested was reduced for the fact that the taxpayer agreed to payer a penalty for the year 2010.
[9] The taxpayer argued that in 2009, the Tax Court of Canada had found in favour of another taxpayer in identical circumstances (Goar, Allison & Associates Inc. v Canada, 2009 TCC 174 (Goar)). It was only in 2010 that the Federal Court of Appeal made a determination finding that even if no tax is payable, subsection 162(7) of the Act applies in lieu of subsection 162(2.1), the writing of which is deficient (Exida.com Limited Liability Co. v Canada, 2010 FCA 159, [2011] 4 FCR 408 (Exida.com)).
The court held that CRA’s decision on the second request was not responsive to the taxpayer’s application:
[13] It would be difficult to blame the taxpayer for being confused since that was not the question. The taxpayer’s argument is that case law favoured its point of view until the Federal Court of Appeal decision that the CRA refers to put an end to the debate. These are new facts that, according to the taxpayer, would warrant the granting of relief.
[14] The CRA did not deal with this claim in any way.
[15] With respect, the reply given by the CRA does not answer the applicant’s argument. Indeed, the reply given on August 24, 2012, corresponds much more to the reference made in the job slips submitted by the respondent. It reads: “[a]ll similar or identical cases are to be processed in accordance with the FCA decision.” The CRA no longer had to worry about the faulty writing of subsection 162(2.1). Subsection 162(7) could be a supplement under the Federal Court of Appeal. The problem is that the applicant does not dispute that the decision of the Federal Court of Appeal deals with the question. Rather, it claims that for the previous years, it could avail itself of some case law. It stated that the law is a situation out of its control. In any case, the text of subsection 220(3.1) does not have the limits that the respondent can impose on it, in the applicant’s view.
Accordingly, the court allowed the taxpayer’s application:
[20] The respondent never answered the question asked. The applicant does not dispute that a penalty is payable for the year where the Federal Court of Appeal dealt with the question. Rather, it asks whether it should not benefit from being given relief since two Tax Court of Canada decisions differed on the question of the application of subsection 162(2.1) and the Federal Court of Appeal determined that this subsection could not apply, but that subsection 162(7) supplemented it.
[21] There is no question here of substituting one point of view for another. Simply, the reasons given for refusing the request for relief do not correspond in any way to the argument advanced by the applicant.
[22] Therefore, I find that the application for judicial review must be allowed, with costs.
[1] 2013 FC 1238.