Davis v. R. – TCC: Tax protester’s appeal dismissed with costs

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/108840/index.do New Window

Davis v. The Queen (March 31, 2015 – 2015 TCC 79, Boyle J.).

Précis: The Davis decision is another one of a large number of cases that are perhaps best grouped as “tax protesters”. While this decision did not fall squarely within the “natural person” line of argument it appears to have a number of affinities: arguing that no judge in Canada is impartial, relying on alleged interpretations of international conventions, etc. The taxpayer did not dispute the amount of income, only whether it was subject to tax by Canada. Justice Boyle would have none of it and dismissed the appeal taking the unusual step of awarding costs against the taxpayer in an informal procedure appeal. Justice Boyle held that by bringing forward arguments with no prospect of success Mr. Davis unduly delayed the prompt and effective resolution of his appeal.

Decision: This decision was a simple tax protester case with no dispute as to the underlying amounts:

[3] The amounts are not in dispute. The taxpayer and his representative, Mr. Lukiv, have acknowledged that if their legal positions relating to the Canadian Constitution, Charter and international human rights treaties do not succeed, the amounts reassessed are not disputed and are payable.

The arguments were at times incoherent:

[6] The written argument handed in today included several pages on the Judges Act. There was some discussion and submissions by Mr. Davis’ representative that, in the circumstances, it was their opinion that neither this court nor the judges of this court, nor any court nor any judges in Canada, could be considered to satisfy Canadians’ rights to have things heard by an independent person and an independent court. Mr. Lukiv acknowledged that he had trouble framing any relief request, given that, had I agreed with him, my opinion became worthless. So he left that dangling. I could not do anything with it in any event. So, that was dealt with satisfactorily to Mr. Lukiv.

[7] There were also references to being presumed innocent until proven guilty in the written arguments. On questioning, Mr. Lukiv acknowledged that Mr. Davis had not been charged with an offence, and we had previously discussed what the onus was in the Tax Court as compared with a criminal court. It is not beyond a reasonable doubt; rather, it is the balance of probabilities, 50 percent plus 1, that we talked about this morning.

[8] So, the only substantive issue, while multi-pronged, is what I will refer to as the Constitutional/Charter/international treaties, all as they concern the human rights arguments that Mr. Lukiv and Mr. Davis wanted to advance. I certainly agree with them and do not deny that all such rights exist as phrased in our Charter and in our Constitution. The problem that Mr. Davis and Mr. Lukiv face is that the courts have been clear that those rights do not extend to not paying tax, nor do they include expressly or otherwise a right to not pay tax. The courts have been clear and consistent. I really need not spill any more ink on this point.

The Court dismissed the appeal and also took the somewhat unusual step of awarding costs against a taxpayer in an informal procedure hearing based on Mr. Davis’ conduct of his appeal:

[9] For these reasons, I will be dismissing the appeal. Under the Rules of the Court, in an informal case, I am able to award costs payable against an unsuccessful taxpayer if the appellant has unduly delayed the prompt and effective resolution of the appeal. In addition to my view that continuing to pursue these arguments, many, many Canadians are abusing the process of the Court, I am also satisfied that today Mr. Davis, simply by bringing these arguments forward once again with no prospect for success, unduly delayed the prompt and effective resolution of his appeal. Therefore, I am awarding costs against him in the amount of $1,185, which is the aggregate of the amounts in Rule 11 for preparing for the hearing, filing the pleadings, and the conduct of a day’s hearings.