http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/181278/index.do
Whissell v. Canada (Attorney General) (October 18, 2016 – 2016 FCA 254, Gauthier, De Montigny, Gleason (Author) JJ. A.).
Précis: This was an appeal from decisions of the Tax Court blogged earlier on this site. Mr. Whissell was assessed for 2006, 2007, 2008, 2009 and 2010 in respect of unreported income. He was assessed non-filing penalties under subsection 163(1) for each of 2007, 2008, 2009 and 2010. The sole issue before the Tax Court was the imposition of these penalties. The Court held that he had not made out a due diligence defence. All of the appeals with the exception of 2006 were dismissed with costs. The 2006 appeal was allowed, without costs, only to the extent of recognizing a charitable donation of $150 which was conceded by the Crown.
The Court of Appeal found no reversible error. The appeals were dismissed from the bench with one set of costs fixed at $1,700 based on the agreement of the parties.
Decision: Mr. Whissell failed to establish any reversible error on the part of the Tax Court Judge:
[3] Despite the able arguments of counsel for the appellant, we have not been persuaded that the Tax Court made any reviewable error. The Tax Court applied the correct legal principles to assess the appellant’s liability under sections 227.1 of the ITA and 323 of the ETA, applying the decision of this Court in Buckingham v. R., 2011 FCA 142, 417 N.R. 178. Nor did the Tax Court make a palpable and overriding error in applying these principles to the appellant’s situation as the evidence before the Tax Court established that the appellant took no steps to prevent the failures to remit, failed to ask question of the others who controlled the financial affairs of the corporation and ignored warning signs, such as previous seizures made by the Canada Revenue Agency. In the circumstances, it was open to the Tax Court to conclude that someone as unsophisticated as the appellant claims to have been should have done more to prevent the failures to remit. The Tax Court therefore did not commit a reviewable error in upholding the assessments.
The appeals were dismissed from the bench with one set of costs fixed at $1,700 based on the agreement of the parties.