[2011] 3 F.C.R. D-3
Income Tax
Reassessment
Judicial review of second-level decision made by director at Canada Revenue Agency (CRA) refusing applicant’s second-level request for positive exercise of discretion, pursuant to Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 152(4.2), seeking relief against normal deadlines for reassessment of income tax returns for reduction of tax payable—Applicant, resident of Newfoundland and Labrador, pleading on own behalf, on behalf of 751 other fish harvesters—In 1999, applicant receiving monies under Government of Canada’s Atlantic Groundfish Licence Retirement Program (AGLRP)—Applicant treating entire payment as capital gain, subsequently learning others taxed on only half of AGLRP payment—Director failing to consider pertinent factors, fettering discretion by treating expiration of deadline for filing notice of objection stated in new information circular (IC07-1) as general rule for denial of relief rather than as guidelines—Decision contrary to guidance in IC07-1, to spirit of Act, s. 152(4.2)—Director’s reasons inadequate since failing to explain why applicant treated differently from other taxpayers—While Director’s decision pursuant to Act, s. 152(4.2) discretionary, must be justified by law—In present case, Director’s reasons lacking justification, transparency, intelligibility—Director’s finding that applicant had filed tax return at issue “appropriately” unreasonable since disregarding fact CRA gave different, contradictory advice as to tax treatment of payment received under AGLRP—Director breaching applicant’s right to procedural fairness by failing to give adequate reasons, by fettering discretion—Application allowed.
White v. Canada (Attorney General) (T-348-08, 2011 FC 556, Heneghan J., judgment dated May 16, 2011, 29 pp.)