http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/120107/index.do
DiMauro v. Canada (September 28, 2015 – 2015 FCA 208, Gauthier (author), Webb, Near JJ. A.).
Précis: The Tax Court Judge struck out Fresh Amended Notices of Appeal and all prior Notices of Appeal in the case of appeals by Mr. DiMauro and Debora Do Couto. The Federal Court of Appeal allowed the appeal and permitted the appeals to proceed in the Tax Court on the issues of penalties and statute-barring (both areas where the onus of proof was on the Crown).
The taxpayers were entitled to one set of costs to cover both appeals.
Decision: This decision essentially mirrored an earlier decision of the Court (Brown) blogged on this site:
[2] The appellants confirm that their Fresh Amended Notices of Appeal dated April 11, 2014 had not been filed in accordance with Rule 54 of the Tax Court of Canada Rules (General Procedure), SOR/90-688a. This would in itself be a sufficient basis to strike them.
[3] As to the striking of the prior Notices of Appeal, particularly the Amended Notices of Appeal dated June 25, 2013, we are of the view and the Crown agrees that there was no basis to strike them (Brown v. Her Majesty the Queen, 2014 FCA 301). The June 25, 2013 Amended Notices of Appeal only raise two issues, namely, the assessment of penalties under subsection 163(2) of the Income Tax Act, R.S.C. 1985 c. 1 (5th Supp.) as amended and whether the 2006 and 2007 reassessments are statute barred.
[4] Accordingly, the appeal will be allowed in part as follows:
a) The Order of the Tax Court of Canada will be amended to read: The Fresh Amended Notices of Appeal are struck.
b) The rest of the Order including the portion dealing with costs is rescinded.
c) The appeals before the Tax Court of Canada will be reinstated based on the June 25, 2013 Amended Notices of Appeal and the replies dated September 30, 2013.
d) The appellants shall each be entitled to one half of the one set of costs granted for these two appeals.