Bellemare v. R. – TCC: Court Expresses Concern About Tax Authorities Lying in Wait Until Expiration of Appeal Period

Bill Innes on Current Tax Cases New Window

Bellemare v. The Queen[1] (November 29, 2013) involved a taxpayer who had been assessed as a director of a corporation known as Sinibelle Inc.  The taxpayer was, in law, not a director of Sinibelle but was apparently assessed on the basis that he was a de facto director.  There appears to have been no contact with the taxpayer by the revenue authorities after the original assessment until the expiration of his rights of appeal when collection action was promptly instituted.  The taxpayer was concerned that he had been ambushed and the court shared that concern:

[8]             However, at the initial hearing, Mr. Bellemare was concerned that it appeared that the tax authorities had waited to take any collection steps, or even to send him statements of account or reminders regarding the Sinibelle tax debt, with a view to frustrating his right to object to the assessment.

[9]             The Court took his concern seriously in the circumstances. Canadians would be rightly disappointed if it turned out that the tax authorities lie in wait for appeal periods to expire before continuing their communication with the taxpayers or beginning collection proceedings. Mr. Bellemare certainly had a history with the tax authorities. Taxpayers may come to court without entirely clean hands. However, the Respondent is the government and Canadians rightly expect the government to act in good faith throughout, for proper purposes, and with clean hands. If it were otherwise, our tax collection system, which relies firstly and largely on voluntary compliance and self-reporting and assessment, would quickly erode.

[10]        The initial hearing was adjourned to allow the Respondent to produce evidence with regard to whether Mr. Bellemare was correct in stating that there had been no follow-up steps taken until after all his rights of appeal had expired, and if Mr. Bellemare was not correct, to submit evidence of the steps taken.

[11]        The hearing resumed months later after the Respondent filed the affidavit of a Ministère du Revenu du Québec collections officer. The affiant also testified at the continued hearing and tendered documentary evidence.

[12]        It does not appear that the MRQ, acting on behalf of the Canada Revenue Agency (“CRA”), took any steps to collect the debt at issue until after the period for objecting had expired as can be seen from the following:

(i)      There were no statements of account or letters showing the amount of the Sinibelle assessment after it was originally issued.

(ii)     The legal hypothec on Mr. Bellemare’s house was not amended to increase it beyond the amount of the 9092 assessment. This could not be satisfactorily explained, even though the house was sold and the MRQ received an amount equal to the 9092 assessment out of the proceeds.

(iii)    While the Respondent’s witness thought the claim in bankruptcy would have been amended to add the amount of the later Sinibelle assessment, no amended claim in bankruptcy was put in evidence nor had the witness inquired about the actions or reasoning of her predecessor on the file. Mr. Bellemare does not recall seeing a revised claim referring to the Sinibelle assessment.

(iv)   The letter sent by the MRQ to Mr. Bellemare after his proposal was annulled does not refer to the Sinibelle assessment nor does the amount referred to therein include the amount of the Sinibelle assessment.

(v)     There was no evidence that the bank accounts seized after the objection period expired had been newly opened by Mr. Bellemare or only recently been discovered by the MRQ.

[13]        In short, having adjourned the hearing so that the Respondent could answer Mr. Bellemare’s concern, having read the affidavit filed, having heard the Respondent’s witness, and having read the correspondence tendered in evidence, I continue to share Mr. Bellemare’s concern. It certainly appears to be a remarkable coincidence that the MRQ’s collection steps began the week after Mr. Bellemare’s objection period expired. This remains a coincidence that the MRQ is unable to explain satisfactorily.

[14]        This Court has no jurisdiction to remedy Mr. Bellemare’s concern should it be proven true, nor does this Court have any jurisdiction to tell the CRA or the Ministère du Revenu du Québec how to conduct itself in administering Canadian tax legislation. However, having listened to Mr. Bellemare’s concern and given the Respondent full opportunity to respond, I continue to be concerned. I would hope that the appropriate persons delve into this to determine if internal processes, policies or training the CRA and/or the Ministère du Revenu du Québec should be improved.

[15]        Mr. Bellemare is clearly out of time for obtaining from this Court an extension of the time within which he may file his objection to his Sinibelle assessment. This Court must therefore dismiss his application. The application is accordingly dismissed.

It is unusual to see a judge of the Tax Court this skeptical about the conduct and motives of the revenue authorities;  one hopes they take his admonition seriously.

[1] 2013 TCC 381.