Legge v. M.N.R.
(December 1, 2014 – 2014 TCC 360) was a very unusual small case where Mr. Legge had reported losses in 2006 and 2007 which the Crown determined resulted in his CPP contributions for those years being deemed to be nil pursuant to subsection 30(5) of the Canada Pension Plan:
30(5) The amount of any contribution required by this Act to be made by a person for a year in respect of their self-employed earnings for the year is deemed to be zero where
(a) the return of those earnings required by this section to be filed with the Minister is not filed with the Minister before the day that is four years after the day on or before which the return is required by subsection (1) to be filed; and
(b) the Minister does not assess the contribution before the end of those four years.
The Tax Court allowed Mr. Legge’s appeal on the basis that the Crown’s pleading was flawed:
 The only issue to be decided is whether subsection 30(5) of the Canada Pension Plan deems contributions to be zero for the years 2006 and 2007.
 The Crown submits that subsection 30(5) applies on the basis that Mr. Legge did not file a return of self-employed earnings within four years of the filing due date for the income tax return for those years. The Crown submits that this requirement is not satisfied because Mr. Legge reported losses rather than earnings.
 I do not accept the Crown’s submission because it ignores that there are two requirements for the application of s. 30(5), a taxpayer filing requirement in paragraph (a) and an assessment requirement in paragraph (b).
 Even if I were to accept the Crown’s argument, subsection 30(5) does not apply unless I also find that the Minister had not assessed contributions within the requisite four year period. The assessment requirement in paragraph (b) is not mentioned in the Reply and it was not mentioned by the Crown at the hearing. It would be unfair to Mr. Legge to dismiss the appeal in these circumstances.
 Further, there is no stated assumption as to what assessments, if any, were made within the four year period. Accordingly, the Crown has the burden to establish by evidence that the requirement in s. 30(5)(b) has been satisfied. This burden has not been satisfied.
 For these reasons, the appeal will be allowed on the basis that subsection 30(5) of the Canada Pension Plan does not apply to contributions for the years 2006 and 2007.
 The result is in a sense a windfall to Mr. Legge because it is likely that there was no assessment of contributions for 2006 and 2007. However, the Crown is well aware of the requirement to properly plead its case and to establish the facts supporting its position, either by evidence or by assumptions.