Stein v. R. - TCC: Another tax protestor meets defeat

Stein v. R. - TCC:  Another tax protestor meets defeat

Stein v. The Queen (July 9, 2015 – 2015 TCC 176, Favreau J.).

Précis:  This is another case of a taxpayer claiming business losses in the context of a classic tax protest filing.

The Tax Court dismissed the appeal with costs.

Decision:   There is not much to say about this case.  It is one in a long line of decisions throwing out business loss claims, perhaps unique because of the degree of education of the taxpayer:

[39]        In this case, I do not believe that the interpretation provided by the appellant is reasonable in the circumstances. In my view, the Minister discharged his burden of proof and established, without ambiguity, that the appellant, knowingly or under circumstances amounting to gross negligence, participated in making false business expense claims in his tax returns for the 2003 to 2007 taxation years and for the 2009 taxation year.

[40]        This Court has often had the opportunity to rule on the interpretation of subsection 163(2) of the Act and on its application in cases like this one, where taxpayers have claimed deductions for fictitious business losses in order to obtain significant tax refunds. The following decisions all deal with the application of gross negligence penalties, although the list is not exhaustive:

-         Lamarre v. Canada, [2000] T.C.J. No. 542 (Tardif J.);

-         Kion v. Canada; 2009 TCC 447 (Sheridan J.);

-         Nowak v. Canada, 2011 TCC 3 (Paris J.);

-         Robert v. Canada, 2011 TCC 166 (Favreau J.);

-         Janovsky v. Canada, 2013 TCC 140 (V.A. Miller J.);

-         Bhatti v. Canada, 2013 TCC 143 (C. Miller J.);

-         Brisson v. Canada, 2013 TCC 235 (V.A. Miller J.);

-         McLeod v. Canada, 2013 TCC 228 (Woods J.);

-         Torres et al. v. Canada, 2013 TCC 380 (C. Miller J.) affirmed by the Federal Court of Appeal, 2015 FCA 60; and

-         Girard v. Canada, 2014 TCC 107 (L. Lamarre J.).

[41]        The fact that the initial and the amended tax returns were not signed by the appellant cannot free the appellant from liability because I am satisfied that the tax returns were prepared by Mr. Ste-Marie on his behalf and on his instructions. The appellant was familiar with the content of the tax returns and participated in their preparation by submitting lists of reimbursed facilitation expenses and of annual author’s fees. He did not notify the CRA of his disagreement with the tax returns filed.

[42]        The appellant received several warnings from the CRA regarding the potential application of gross negligence penalties but he did nothing to remedy the situation and did not consult with taxation experts in order to do so. The appellant’s cavalier attitude shows a degree of negligence or wilful blindness that amounts to gross negligence.

[43]        The appellant has three university degrees and holds an important position at Hydro-Québec. He was very aware of the falsity of the amounts entered into his tax returns and he did not sign them because he was afraid of making false statements. Despite all of that, the appellant participated in, assented to or acquiesced in the making of false statements in his tax returns filed for the years at issue.

As a result the appeal was dismissed with costs.