[2013] 4 F.C.R. D-2
Income Tax
Assessment
Judicial review to obtain (1) mandamus compelling Minister of National Revenue to examine applicant’s 2010 tax return, or (2) declaratory relief—Global Learning Gifting Initiative (GLGI) registered tax shelter since 2004—In 2009, CRA auditing GLGI for each of 2004–2008 taxation years, resulting in denial of every charitable donation credit claim for those years—Significant number of notices of objection filed disputing the denial of those claims—Audit ongoing in 2011—Canada Revenue Agency’s Winnipeg tax centre modifying long-standing policy of allowing taxpayer’s claim for charitable donation tax credits made for gifting tax shelter in initial assessment and then, after auditing tax shelter, issuing reassessment if necessary—Pursuant to new policy, audit conducted before issuing refund to taxpayer—Applicant one of taxpayers who made donation in 2010 through GLGI—Issue whether respondent’s new policy, excuse for delay in assessing consistent with Minister’s duty to assess “with all due dispatch” pursuant to Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1 (ITA), s. 152(1)—Term “with all due dispatch” thoroughly canvassed in Jolicoeur v. Minister of National Revenue, [1961] Ex. C.R. 85—Term equivalent of “with all due diligence” or “within a reasonable time”—No fixed time period for the performance of the duty to assess—Other decisions confirming that same basic interpretation, i.e. Minister having reasonable discretion in timing of assessment, but that discretion not unfettered, must be reasonable, for proper purpose of ascertaining, fixing taxpayer liability—In determining whether Minister meeting this statutory obligation herein, essential to consider real purpose, effect of new policy, which in present instance was to deter taxpayers from participating in GLGI program—Taxpayers within Winnipeg tax centre’s ambit treated differently from taxpayers in rest of the country, that treatment inconsistent with federal, national nature of Minister’s obligation—Intent of new policy to delay assessments, discourage participation in GLGI program—Delay in assessing applicant thus not truly related to examining her return, ascertaining her tax liability—Applicant entitled to declaration that Minister failed to comply with duty to assess with all due dispatch.
Ficek v. Canada (Attorney General) (T-1933-11, 2013 FC 502, Phelan J., judgment dated May 14, 2013, 13 pp.)