The Queen v. Hart Electronics Limited
Published in: 59 Dominion Tax Cases 1192
Manitoba Court of Appeal
July 8, 1959
SUMMARY
Under the provisions of section 126(2), the Minister notified the respondent company that it was required to file income tax returns on form T2. An officer of the company sat a letter to the Department enclosing unsigned T2 forms, showing no tax payable, on which certain remarks and comments had been filled in. No documents were attached to the forms. (The essential parts of the T2 forms sent in by the company are reproduced following the reasons for judgment.) The company was charged with failure to file the returns required When a magistrate dismissed the charge, the Crown appealed to the Manitoba Court of Appeal by way of stated case. In outlining the facts of the case, it was stated that T2 forms had been enclosed in a letter to the Department and that these forms 'although not signed contained certain information'.
Held: The appeal was dismissed (one dissenting). The Court was confined in its deliberations to the facts as stated. All that was known from the case as stated was that T2 forms were returned which gave 'certain information'. How much or how little information the forms disclosed was not before the Court. In the Court's opinion, a T2 form, which gave certain information sent by letter though the form was not signed, constituted an income tax return.
Counsel:
J.B. Hughes for the Crown;
J.S. Lamont, Q.C., for the respondent.
Before:
JJ.A. Adamson, C.J.M., Montague, Schultz and Tritschler
DECISION
ADAMSON, C.J.M. (Montague and Schultz, JJ.A., concurring): This is a stated case by D. C. M. Kyle, Esq., one of Her Majesty's Police Magistrates for Manitoba, under the provisions of sections 733 to 742 of the Criminal Code of Canada.
Charge of failure to file return
On the 13th day of November, 1958, an Information was laid alleging that --
Hart Electronics Limited, at Winnipeg in the Province of Manitoba between the 2nd day of August, 1958, and the 30th day of October, 1958, inclusive, did unlawfully fail to comply with Sec. 126(2) of the Income Tax Act; to wit, did fail to file it's Income Tax Return on Form T.2 for the Taxation Year 1956, following requirement therefor dated the 17th day of July, 1958, under Sec. 126(2) of the Income Tax Act, contrary to Sec. 131(2) of the Income Tax Act.
The facts are stated as follows:
(a) On the 17th day of July, A.D. 1958, pursuant to Section 126(2) of 'The Income Tax Act' a requirement in writing (Exhibit 1) by the Minister of National Revenue to Hart Electronics Limited for an Income Tax Return on Form T2 for Taxation Year 1956 was served on Gerald A. V. Hart, an Officer of Hart Electronics Limited, at 132 Osborne Street, Limited, at 132 Osborne Street, Winnipeg, Manitoba.
(b) On the 1st day of August, A.D. 1958. Hart Electronics Limited sent a letter (Exhibit 2) to Mr. Murphy, Department of Internal Revenue, Federal Building, Winnipeg, Manitoba, enclosing T2 1956 forms.
(c) These Forms (Exhibits 3), although not signed contained certain information, but no documents were attached thereto.
The learned magistrate held that the T2 1956 Forms as filed constituted compliance with the requirement in writing for an Income Tax Return on Form T2 and dismissed the charge. The following two questions are submitted:
What elements are essential to constitute an Income Tax Return?
Does the Form T2 1956 as filed by Hart Electronics Limited on the 1st day of August, A.D. 1958, contain the elements essential to constitute an Income Tax Return on Form T2 for the Taxation Year 1956 and thus comply with the requirement therefor by the Minister of National Revenue dated the 17th day of July, A.D. 1958.
The duty of this Court is to decide whether the accused was or was not properly acquitted. The only questions or parts of questions which require an answer are those necessary to determine the issue. In re Johnson; In re Slot Machine Act (1954) S.C.R. 127; Rex v. Moroz, 53 M.R. 1; Regina v. Stelzer (1957) 66 M.R. 78.
Filed form constituted a return
Question 1 is not a proper question. A discussion on 'What elements are essential to constitute an Income Tax Return', apart from the facts as stated, would be purely academic.
Question 2 involves more than is necessary to determine whether the respondent was properly acquitted or not. The sole question is: Does the unsigned form T2 giving 'certain information' enclosed with a letter constitute an income tax return? The question is not whether the return is defective or inadequate; the question is: Does the letter with the form constitute a return at all?
What we have to decide is not whether the magistrate arrived at the right conclusion but whether there is any evidence to support his decision. R. v. Kuhl (1937) 1 W.W.R. 68; Zeats v. Johnston (1910) 3 Sask. L.R. 364; Crankshaw's Criminal Code of Canada, 7th ed., p. 1265.
The magistrate has found that the form 'although not signed contained certain information, but no documents were attached thereto.' In our deliberations we are confined to the facts as stated. 'On the hearing the Court does not resort to the evidence to find the facts but takes them as stated in the stated case'. Rex v. Moroz, supra. The appellant is bound by his statement of facts and is restricted to those facts on his appeal. R. ex rel Scullion v. Canadian Brewers Transport Co., 117 C.C.C. 37. How much or how little information the forms disclosed is not before us. All we know from the case as stated is that form T2 was returned which gave 'certain information'. The fact that 'no documents were attached thereto' means nothing by itself. It is not stated or found as a fact that there were documents which should have been attached.
The form was not signed but was enclosed with a letter. The omission to sign the form does not render the return a nullity. If a cheque had been enclosed it could not be argued that there was no return. If it appears that no tax is payable it also is a return though the form was not signed. In my opinion a form T2, which gives certain information sent by letter though the form is not signed, does constitute an income tax return.
Appeal dismissed
I would dismiss the appeal.
TRITSCHLER, J.A. [dissenting]: This is an appeal by way of stated cases against the dismissal by a summary conviction Court of two charges against the accused.
Facts
The first charge is set out in the Information as follows:
that
"HART ELECTRONICS LIMITED, 132 Osborne Street, Winnipeg, 13, Manitoba
At Winnipeg in the Province of Manitoba between the 2nd day of August, 1958, and the 30th day of October, 1958, inclusive, did unlawfully fail to comply with Sec. 126(2) of the Income Tax Act; to wit, did fail to file it's Income Tax Return on Form T2 for the Taxation Year 1956, following requirement therefor dated the 17th day of July, 1958, under Sec. 126(2) of the Income Tax Act, contrary to Sec. 131(2) of the Income Tax Act."
The second charge is in the same terms except that it relates to 'the Taxation Year 1957.'
On July 17, 1958, pursuant to s. 126(2) of the Income Tax Act, requirements in writing by the Minister of National Revenue to the accused for an Income Tax Return on Form T2 for, in one case, Taxation Year 1956 and in the other case Taxation Year 1957, were served upon the accused.
The relevant parts of these requirements were as follows:
"Requirement for Income Tax Return on Form T2 for Taxation year 1956 (in the other case '1957').
Dear Sir
You have not filed the above-described income tax return and you are now hereby required under section 126(2) of the Income Tax Act to file that return within fifteen days from the date of this Requirement."
With each Requirement was furnished forms for 'Corporation Income Tax Return' designated 'T2 Rev. 11-56'.
On August 1, 1958 the accused sent a letter to the Winnipeg office of the Department of Internal Revenue and with it enclosed two T2 forms relating respectively to the years 1956 and 1957. No documents were attached to these forms.
The learned magistrate found that the T2 1956 and 1957 Forms constituted compliance with the Requirements and dismissed the charges.
In the two Stated Cases the same questions are put: --
What elements are essential to constitute an Income Tax Return?
Does the Form T2 1956 (1957 in the other case) as filed by Hart Electronics Limited on the 1st day of August. A.D. 1958, contain the elements essential to constitute an Income Tax Return on Form T2 for the Taxation Year 1956 and thus comply with the requirement therefor by the Minister of National Revenue dated the 17th day of July. A.D. 1958.
I decline to embark upon the lengthy treatise in obiter which is required by Question 1 and shall confine myself to Question 2.
Minister's powers
The Minister, under s. 126(2), was empowered to require from the accused --
"(a) any information . . . including a return of income . . . . or
(b) production . . . of any . . . accounts. invoices, statements (financial or otherwise) or other documents"
Sec. 126(6) provides --
". . . notwithstanding any other law to the contrary, every person shall, unless he is unable to do so, do everything he is required by or pursuant to this section to do"
The documents and information required by the said T2 forms were matter which the Minister was so empowered to require.
Letter and forms sent in by company
The accused's manner of dealing with the aforesaid requirements of the Minister is best shown by reproducing the letter and forms: --
"Hart Electronics Ltd.
Radio and Electronic Distributors
and Technicians, 132 Osborne Street
Winnipeg 13, Man.
August 1, 1958.
Mr. Murphy.
Dept. of Internal Revenue.
Federal Bldg.,
Winnipeg. Man.Sir: --
In reply to your letters of July 17th, reference C. Murray. I beg to differ with you in connection with the statement in your first paragraph as a T2 return was filed for 1956, whether you and your blood-hounds wish to admit it or not. However, I have taken the precaution of keeping copies this time, as it is a known fact that your huge overstaffed department have often mislaid documents and attempted to put the blame upon the docile public.
You may not like or understand my method of completing these documents but as I explained to your henchmen, I am no accountant, and never wish or hope to be. Consequently, my answers are made in all sincerity and to the best of my ability and It is to be hoped that you will accept them as such.
HART ELECTRONICS LIMITED Yours very truly, 'G. A. Hart' G. A. Hart.
The essential parts of the 1956 and 1957 forms as sent in by the accused are appended to these reasons. [NOTE: the "essential parts" are not available on this web site (they are graphic, not textual, in nature). However, below, his honour reviews quite a number of Mr. Hart's responses - P.M.].
Counsel for the accused, who frankly described the responsible officer of the accused as a 'temperamental person with a strong dislike for bureaucrats', conceded that the returns were 'very bad' and 'defective' but submitted in his factum that the return made 'no matter how defective is a sufficient answer' to the Minister's requirement.
Forms sent in did not qualify as returns
I cannot accept this view. To describe the returns made by the accused as 'defective' is to dignify them beyond their deserts. If these were merely defective returns the accused was entitled to an acquittal but a line can be drawn between a merely defective return and one which does not qualify as a return at all. In this case I think that line may be drawn without difficulty. Giving the accused the benefit of any doubt, it cannot be said that it did what was required or indeed that made any attempt at compliance.
One heading of the forms is 'Documents and Information Required', and later appears The following must be attached, where applicable:'. On the righthand side of the form, opposite items 1, and 2(a) to (i), the corporation is required to indicate by check marks whether the required statements, schedules, etc., are 'Attached' or 'Not applicable'. No check marks are inserted and no statements or schedules of any kind were attached. The comment 'None available' following the heading 'Financial Statements and Schedules' gives none of the information required by the Minister. If there was 'None available' they should have been prepared. The requirement for the attachment of '1. Complete financial statements, including auditor's report' is not met by the comment 'no auditor, too costly'. Many taxpayers, perhaps the majority, have no auditors but nevertheless prepare their own 'financial statements'.
Item 2. required the attachment of 'Schedules or lists showing in detail' certain matter described in subparagraphs (a) to (i) inclusive. These requirements could only be satisfied by preparing where applicable the schedules or lists and attaching them to the form. The comments 'Nil', 'no aspects or prospects', 'no reserves, all debt doubtful, liability unlimited', 'Not known', 'Many', 'never computed' are neither informative nor responsive to the requirements.
The questions under the heading 'Transactions with Shareholders' are required to be answered with a simple 'Yes' or 'No'. The comments 'nothing with which to remunerate', 'What with???' and 'Quite' are again neither informative nor responsive and do not comply with what was required.
In the boxed-in space near the end of the form the corporation is required to state the amount of 'Taxable Income for Fiscal Period'. This is not answered by the comment 'not known, cannot afford expensive accounting'; nor is the requirement to state the amount of 'Tax Payable after deducting tax allowances' complied with by the comment 'Cannot afford domestic tax, what say Foreign handouts'. The accused shows 'Balance of Tax Payable' as 'Nil' but this must be read in the light of its previous answer that it did not know what was its taxable income.
The return required by the Minister was required by him, in the form, to be certified as 'a true, correct and complete return.' Neither form was certified or signed. Indeed no one could with truth have certified either of these forms in the words required and the accused's failure to complete the certification was probably not due to oversight. The Act provides penalties for 'false or deceptive statements in a return, certificate, statement or answer filed or made as required by or under this Act . . .' S. 132(1)(a).
The letter of August l which accompanied the forms gives no information. The only reference that requires consideration is the statement 'My answers are made in all sincerity and to the best of my ability'. Counsel for the accused made no such case. He did not attempt to submit that it had been actually impossible for the accused to give any of the information required by the Minister or that, for example, over a 24-months period the accused could not give a single figure of income or outgo. Even if, as was not faintly suggested, the accused kept no books or records, a reconstruction from memory would have achieved some particulars. An unsigned and uncertified form which makes no 'return of income' does not become one by statements such as are contained in the accused's covering letter.
It is plain that the accused could have complied, at least in part, with the Minister's requirements. Indeed counsel for the accused agreed during argument that he would see to it that proper returns were filed if counsel for the Crown would agree to such a termination of the matter.
Dissenting judgment
The Forms T2 1956 and 1957 as filed by the accused on August 1, 1958, did not contain the elements essential to constitute an Income Tax Return on Form T2 for the taxation years 1956 and 1957 and did not comply with the requirements therefor by the Minister of National Revenue dated July 17, 1958. In each case I would answer Question 2 in the negative. In both cases the determination of the learned magistrate is reversed and the case remitted to the summary conviction Court.