Lee v. R. – TCC: Taxpayer Convicted of Tax Evasion Loses Civil Tax Appeal

Bill Innes on Current Tax Cases

http://decision.tcc-cci.gc.ca/site/tcc-cci/decisions/en/item/62848/index.do New Window

Lee v. The Queen[1] (September 16, 2013) involved tax on undisclosed commission income.  Mr. Lee had previously been found guilty of tax evasion in respect of this undisclosed income.  A number of points were raised in this civil appeal:

[8]             Mr. Lee represented himself at the hearing. His notice of appeal raises a number of issues, as follows:

(a)              whether the reassessments are statute barred;

(b)             whether the Minister correctly calculated taxable income;

(c)              whether there is any amount of tax owing; and

(d)             whether gross negligence penalties were properly imposed.

Not surprisingly, Mr. Lee was unsuccessful in all of these arguments although the court did, of its own motion, reduce the amount of unreported income to correspond with the findings in the prior criminal proceeding:

[33]        The relevant amounts for purposes of the criminal charges are set out in the first paragraph of Cowan J.’s decision. It reads:

1     Bradman Lee is charged with three counts of unlawfully making, participating in, assenting to or acquiescing in the making of false or deceptive statements in his T1 individual income tax returns for the taxation years 1999, 2000 and 2001 by understating his taxable income for those years in the amounts of $59,985.74, $29,189.36 and $59,448.47 respectively, thereby committing an offence in each case under paragraph 239(1)(a) of the Income Tax Act.

[34]        These amounts are all less than the amounts referred to in the Reply.

[35]        As far as I can recollect, this discrepancy was not mentioned at the hearing. In my view, it would not be fair to change the allegations without some explanation so that Mr. Lee could deal with it at the hearing.

[36]        I propose, therefore, to require an adjustment to the reassessments for 1999, 2000 and 2001 so that the amounts correspond with the amounts on which Mr. Lee was convicted of tax evasion.

An interesting aspect of this case is that the court posed, but did not find it necessary to answer, the question of whether the prior criminal conviction was dispositive of the failure to report income or merely prima facie evidence of such failure:

[37]        Before leaving this issue, I would also comment that the Crown took the position at the hearing that the criminal convictions were only prima facie proof that income was falsely reported. It was submitted that Mr. Lee has the opportunity to rebut the criminal findings at this hearing.

[38]        I am not clear why the Crown took this position because the authority that counsel relied on concluded that a criminal conviction may be dispositive and not merely prima facie proof: Toronto (City) v Canadian Union of Public Employees Local 79 (“CUPE”), 2003 SCC 63, [2003] 3 SCR 77, para 56 – 58.

[39]        If Mr. Lee had presented persuasive evidence which called into question the criminal convictions, this Court would be in a difficult position of potentially undermining a finding of a competent court reached on a very high standard of proof. The Supreme Court of Canada in the CUPE decision makes it clear that this situation undermines the integrity of the criminal justice system.

[40]        In any event, in light of the conclusions that I have reached regarding the evidence in this case, I am not faced with a situation of casting doubt on the criminal convictions.

[1] 2013 TCC 289.