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La Cour rejette l’appel de Louise Mercier et ceux de 9171-4592 Québec inc. liés à la TPS, concluant à la responsabilité de l’administratrice et à l’absence de diligence raisonnable.
Appels fiscaux accueillis en partie : la Cour réduit certains avantages à l’actionnaire, rejette plusieurs dépenses contestées, et annule les pénalités pour faute lourde.
Tax Court judge's credibility and factual findings that appellant did not ordinarily occupy the properties and carried on a real estate development business were reasonably supported by the evidence; appellant therefore was a builder under the ETA, the sales were on income account and taxable, and reassessments and penalties were properly imposed; no palpable and overriding error shown, so appeal dismissed.
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Costs in the amount of $48,100 were awarded to the Respondent because the Appellants were unprepared, caused significant wasted trial time, refused to admit facts and otherwise behaved unreasonably; costs were calculated under the Tax Court Tariff ($46,000 for the appeals and $2,100 for submissions) and are payable immediately, jointly and severally.
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Appellant's activities were objectively commercial and identical in nature to pre-2006 contracting work, therefore under Stewart they constituted a source of income (a business); appellant knowingly omitted those amounts from returns and, given the magnitude of unreported receipts, prior professional advice against the filing position and adoption of an OPCA-based scheme, his conduct amounted to gross negligence or wilful blindness, so s.163(2) penalties apply.
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The Minister met the onus to establish false statements or omissions and gross negligence by showing substantial underreporting, commingled and inadequate records, and inclusion of personal expenses as business costs; accordingly gross negligence penalties were upheld for Ludlow and the Partnership and upheld for Raymond subject to correction of the quantified unreported income to $13,171 (2006) and $8,798 (2007) and referral back to the Minister for recalculation of penalties.
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Because the appellants destroyed or failed to produce supporting sales records and provided no cogent evidence for alleged loans or family contributions, they failed to rebut the net worth assessment; however identifiable calculation errors in the auditor's net worth analysis were corrected as proposed by the Respondent and the assessments were referred back for reassessment; gross negligence penalties were justified.
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The appellant failed to prove that ISTO payments were deductible expenses rather than loans and the Court will not require reassessment changing ISTO gains from capital to income because such recharacterization would be statute-barred; however the appellant made a partial prima facie case that certain unexplained 2002 deposits were not revenue of the car business (notably US-dollar deposits), warranting reduction of car business revenue for 2002 by $170,000, and the Crown conceded specific adjustments and home-office allocation which the Court fixed at 20% for non-leased periods; GST gross ne…
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Minister proved misrepresentation by taxpayer for 1999 and 2000 permitting reassessment beyond normal period; the taxpayer's demonstrated practice of constructing and selecting units for sale to generate cash to fund ongoing projects, together with monthly selection of units and reliance on an agent to find buyers, established that disputed dispositions were in the nature of an adventure in the nature of trade (business income) rather than capital dispositions; MPAC assessments are not reliable indicators of FMV in this context and Minister's FMV determinations based on comparable sales were…
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The appellant failed to discharge the burden of proof to show she used the new housing as her primary place of residence: her testimony was found not credible and was uncorroborated by documentary or independent testimonial evidence; therefore the GST rebate claim was properly disallowed under s.256(2).
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