THE ESTATE OF THE LATE RAYMOND KRENBRINK Appellant v. HER MAJESTY THE QUEEN, 2014 FCA 212

Date: 20140924 Docket: A-118-14 Citation: 2014 FCA 212 CORAM: SHARLOW J.A. PELLETIER J.A. STRATAS J.A. BETWEEN: THE ESTATE OF THE LATE RAYMOND KRENBRINK Appellant and HER MAJESTY THE QUEEN Respondent Heard at Vancouver, British Columbia, on September 24, 2014. Judgment delivered from the Bench at Vancouver, British Columbia, on September 24, 2014. REASONS FOR JUDGMENT BY: SHARLOW, J.A. Date: 20140924 Docket: A-118-14 Citation: 2014 FCA 212 CORAM: SHARLOW J.A. PELLETIER J.A. STRATAS J.A.

BETWEEN: THE ESTATE OF THE LATE RAYMOND KRENBRINK Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT SHARLOW J.A. [ 1 ] We are all of the view that this appeal cannot succeed. [ 2 ] The decision of Justice Graham ( 2014 TCC 22 ) cannot be reversed on appeal unless it is based on an error of law or a palpable and overriding error of fact ( Housen v.

Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235 ) . [ 3 ] Justice Graham was not persuaded that the Crown, in pleading both carelessness and negligence in its Reply, was raising an alternative argument within the meaning of subsection 152(9) of the Income Tax Act , R.S.C. 1985, c. 1 (5 th Supp.).

We are not persuaded on that point either. [ 4 ] However, Justice Graham concluded that even if he were to assume that subsection 152(9) was applicable, the Crown was entitled to plead and argue both carelessness and negligence because, in the circumstances of this case, the taxpayer would not be prejudiced by the alternative argument. In our view, Justice Graham did not err in law or in fact in reaching that conclusion. [ 5 ] Nor are we persuaded that Justice Graham misapplied the burden of proof, which rested on the Crown because the reassessment was issued after the expiry of the normal reassessment period.

Given the entire body of evidence presented in the Tax Court, it was reasonably open to Justice Graham to find as he did, on the balance of probabilities, that the executor was indifferent as to the accuracy of the tax return that she was responsible for preparing. We find no error of law or fact in Justice Graham’s conclusion that the failure to report the income in issue was attributable to the negligence of the executor. [ 6 ] For these reasons, the appeal will be dismissed with costs.

“K. Sharlow” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-118-14 (APPEAL FROM A JUDGMENT OF THE HONOURABLE MR. JUSTICE GRAHAM OF THE TAX COURT OF CANADA DATED JANUARY 27, 2014, NO. 2012-2210(IT)G.) STYLE OF CAUSE: THE ESTATE OF THE LATE RAYMOND KRENBRINK v. HER MAJESTY THE QUEEN PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: september 24, 2014 REASONS FOR JUDGMENT of the court BY: SHARLOW J.A. pelletier j.a. stratas j.a. DELIVERED FROM THE BENCH BY: SHARLOW J.A.

APPEARANCES : Jonathan Aiyadurai For The AppELLant Shannon Currie For The Respondent SOLICITORS OF RECORD : Johns, Southward, Glazier, Walton & Margetts Victoria, British Columbia For The Appellant Department of Justice, Tax Law Services Vancouver, British Columbia For The Respondent