Klundert v. R. – SCC: Tax appeal an abuse of process – application for leave dismissed

Bill Innes on Current Tax Cases

The Klundert decision of the Federal Court of Appeal was blogged previously on this site.

http://williaminnes.wordpress.com/2014/06/27/klundert-v-r-fca-taxpayer-loses-appeal-from-decision-of-the-tax-court-no-cause-of-action-disclosed/ New Window

The Federal Court of Appeal upheld a Tax Court decision striking the appeal as an abuse of process.  On December 4, 2014 the Supreme Court of Canada dismissed, with costs, an application for leave to appeal:

Tax: Use of Audit Power Information in Criminal Context 
Klundert v. Canada, 2014 FCA 155 (35996) 
For the taxation years between 1993 and 1997, the Applicant either filed tax returns showing nil income or failed to file tax returns.  He was investigated by C.R.A. pursuant to its administrative audit powers.  He was also subsequently subject to a criminal investigation and charged with tax evasion.  The Applicant had three trials before the Ontario Superior Court of Justice on tax evasion, two appeals before the Ontario C.A., and leave to appeal to the S.C.C. was denied. Following the third trial, the Applicant was convicted of tax evasion under s. 239 of the Income Tax Act.  He was unsuccessful in challenging that conviction on appeal.  Based on the findings of the third trial, in which the Applicant was found to have failed to report respective amounts of $241,625, $270,403, $434,931, $254,520 and $272,910 for the years from 1993 to 1997, the CRA reassessed his income taxes on exactly the same basis.  The Applicant filed a notice of appeal seeking to quash the reassessments for the 1993 to 1997 taxation years.  The Applicant alleged the information obtained pursuant to the CRA’s audit powers were used in pursuance of its criminal investigation, thus infringing his s. 7 and s. 8 Charter rights.  According to the Applicant, any evidence obtained from such improper searches, including any admission made by him in any criminal proceeding, should be excluded as evidence for the purposes of reassessments.  The Respondent brought a motion to strike the notice of appeal and dismiss the appeal. Tax Court of Canada: motion to dismiss Applicant’s appeal allowed; appeals from reassessments made under the Income Tax Act for 1993, 1994, 1995 and 1996 taxation years, dismissed; Applicant’s motion to amend notice of appeal, denied. C.A.: appeal dismissed. “The application for leave to appeal…is dismissed with costs.”

Source:  Supreme Advocacy Letter #77

http://supremeadvocacy.ca/ New Window