Burden Proof

"Mr. Deyab’s argument that the Tax Court Judge inappropriately shifted the burden of proof to Mr. Deyab, in relation to the reassessments of the statute-barred years, arises from the sequence in which the Tax Court Judge considered the issues that were before him. At page 4 of the transcript of his oral reasons the Tax Court Judge stated:\n\nThe three issues which were raised in this appeal are as follows:\n\n(a) Whether the Appellant failed to report in his income the aforementioned shareholder benefit amounts the Minister alleges the Appellant received from M.D. Consulting 2005 Inc. in his 2007 through 2011 taxation years;\n\n(b) Whether the Appellant is liable to pay gross negligence penalties in respect of any such unreported income pursuant to subsection 163(2) of the Act; and\n\n(c) Whether the Minister was able to reassess the Appellant’s 2007, 2008, 2009 and 2010 taxation years beyond the normal reassessment period pursuant to subsection 152(4) of the Act.\n\nIn his reasons, the Tax Court Judge considered the first issue before he collectively addressed the other two issues. In particular, he noted at page 7 of the transcript of his oral reasons, “I will first address the issue of whether Mr. Deyab received any shareholder benefits from M.D. Consulting 2005 Inc. which he failed to report in the taxation years under appeal”.\n\nIn this appeal, there is no allegation of fraud. Therefore, in order to reassess the statute-barred years (2007 to 2010), the Minister must prove, on a balance of probabilities, that Mr. Deyab:\n\n(a) has made a misrepresentation; and\n\n(b) such misrepresentation is attributable to neglect, carelessness or wilful default.\n\n[Estate of Stanley Vine v. The Queen, 2015 FCA 125, at para. 24]\n\nIn this particular appeal, however, not all of the taxation years that were before the Tax Court were statute-barred. Specifically, the reassessment for 2011 was issued within the normal reassessment period. Therefore, there would not have been an onus of proof on the Minister to establish a misrepresentation that would have permitted the reassessment of the 2011 taxation year.\n\nIn listing the issues, the Tax Court Judge should have recognized that for four of the five taxation years that were before him, the Minister had the onus of proving that there was a misrepresentation and that such misrepresentation was attributable to neglect, carelessness or wilful default (there being no allegation of fraud in this case). However, in my view, this did not affect the outcome of the case in relation to the question of whether the statute-barred years could have been reassessed."