Krenbrink v. R. – FCA: Carelessness and negligence not alternative arguments for subsection 152(9) rule

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Krenbrink Estate v. Canada (September 24, 2014 – 2014 FCA 212) is one of the few appellate cases dealing with subsection 152(9) of the Income Tax Act:

Alternative basis for assessment. The Minister may advance an alternative argument in support of an assessment at any time after the normal reassessment period unless, on an appeal under this Act

(a) there is relevant evidence that the taxpayer is no longer able to adduce without the leave of the court; and

(b) it is not appropriate in the circumstances for the court to order that the evidence be adduced.

The taxpayer had originally been assessed on the basis of carelessness but on appeal in the Tax Court the Minister also relied upon negligence.  The Tax Court rejected the argument that negligence was an alternative basis for the assessment.

The Court of Appeal succinctly rejected the argument that this was an alternative basis, concluded that there had, in any event, been no prejudice and supported the Tax Court’s treatment of onus of proof:

[3] Justice Graham was not persuaded that the Crown, in pleading both carelessness and negligence in its Reply, was raising an alternative argument within the meaning of subsection 152(9) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.). We are not persuaded on that point either.

[4] However, Justice Graham concluded that even if he were to assume that subsection 152(9) was applicable, the Crown was entitled to plead and argue both carelessness and negligence because, in the circumstances of this case, the taxpayer would not be prejudiced by the alternative argument. In our view, Justice Graham did not err in law or in fact in reaching that conclusion.

[5] Nor are we persuaded that Justice Graham misapplied the burden of proof, which rested on the Crown because the reassessment was issued after the expiry of the normal reassessment period. Given the entire body of evidence presented in the Tax Court, it was reasonably open to Justice Graham to find as he did, on the balance of probabilities, that the executor was indifferent as to the accuracy of the tax return that she was responsible for preparing. We find no error of law or fact in Justice Graham’s conclusion that the failure to report the income in issue was attributable to the negligence of the executor.

The appeal was accordingly dismissed with costs.