BETWEEN:
and
[OFFICIAL ENGLISH TRANSLATION]
____________________________________________________________________
Appeals heard on February 23, 2005 at Montreal, Quebec
Before: The Honourable Justice François Angers
Appearances:
____________________________________________________________________
JUDGMENT
The appeals from the assessment under the Income Tax Act for the 1988, 1989, 1990, 1991 and 1992 taxation years are dismissed.
The appeal from the assessment in respect of the 1997 taxation year is dismissed, with the exception of that portion of the assessment which demands reimbursement of the tax credit paid to the Appellant under the name of Micheline Moïse.
Signed at Edmundston, New Brunswick, this 22nd day of April, 2005.
Translation certified true
on this 6th day of February, 2006.
BETWEEN:
ANTONINE SUCCÈS,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
[OFFICIAL ENGLISH TRANSLATION]
REASONS FOR JUDGMENT
[1] Antonine Succès is appealing an assessment dated November 25, 2002, in which the Minister of National Revenue (the "Minister") demands reimbursement of Child Tax Credits and Goods and Services (GST) tax credits for the 1988, 1989, 1990, 1991, 1992 and 1997 taxation years on the grounds that the Appellant obtained them using false identities.
[2] The Minister asserts that during the 1988, 1989, 1990, 1991 and 1992 taxation years, the Appellant fraudulently used the name and the social insurance number of Gerda Michel in order to receive Child Tax Credits in accordance with the legal provisions in effect at the time and, after January 1, 1992, GST credits; the total amounts were $1,647, $1,018, $960, $1,056 and $810 for the years 1988, 1989, 1990, 1991 and 1992 respectively, before interest. The Appellant denies this allegation.
[3] Second, the Minister maintains that during the 1997 taxation year, the Appellant fraudulently used the name and social insurance number of Mona Moiseneault in order to collect GST credits of $410.31 and that, during that same year, the Appellant used the name and the social insurance number of Micheline Moïse to collect $174.30 in child tax credits.
[4] The Appellant admitted at the hearing that she had collected tax credits using the name and social insurance number of Mona Moisenault and that Mona Moisenault had never existed. The Minister, for his part, withdrew his demand for repayment of the tax credits paid to Micheline Moïse. The sister of the Appellant admitted at the hearing that she was the one who had used this false identity and had benefited from it.
[5] The issue before us is thus whether the Minister is justified in demanding from the Appellant the amounts which, in his view, were obtained by the Appellant using the name and the social insurance number of Gerda Michel during the taxation years from 1988 to 1992 inclusively.
[6] The Appellant testified that Gerda Michel is her friend and that she lived with her from 1984 to 1992, until she left Canada for the United States. After she moved, she returned to Canadatwice a year, although the Appellant also noted that she had reportedly come to Canadafor one-week stays prior to 1992.
[7] Gerda Michel had a bank account and the Appellant, according to her testimony, was authorized to make withdrawals from it. She acknowledged that she had made withdrawals from it and that she had sent this money to Ms. Michel when she was not in Canada, but she denied having fraudulently used the lady's name and social insurance number to collect Child Tax Credits.
[8] The Appellant acknowledged that she had used the name and the identity of Gerda Michel to obtain social assistance fraudulently between 1992 and 1995. She admitted having used a health insurance card bearing the name of Gerda Michel with her photograph, together with a social insurance card bearing that name. She admitted that she had been convicted on various charges of fraud, assault and theft. She pleaded guilty on the advice of her lawyer and was sentenced to ten months in prison. She was released after serving a month and a half in prison. Copies of these charges were submitted in evidence. The Appellant also admits that she had repaid the amount of $133,844 when a writ of seizure by garnishment before judgment was issued against a building that belonged to her.
[9] Hugues-Martin Lefebvre is an investigator under Quebec's Act respecting income security. He is the one who investigated the actions of the Appellant and her use of false identities. During a search of the Appellant's residence, a number of false Social Insurance cards and Quebec Health Insurance cards bearing the photograph of the Appellant were seized, albeit bearing an assumed name, namely that of Gerda Michel. The investigation revealed that all the handwriting on the cheques, the cards in question, the applications for benefits, the bank deposits and other documents had been made by the Appellant, using a different identity.
[10] In the case of Gerda Michel, Mr. Lefebvre summarized his testimony by reading a number of relevant paragraphs from his affidavit in support of a praecipe for a writ of attachment by garnishment before judgment, which I have reproduced below:
[TRANSLATION]
6. As is detailed more fully below, my investigation revealed that the defendant, since at least August 1992, has used, and continues to use, a number of ruses, including the falsification of documents, the use of false addresses and the use of at least seven (7) false identities in order to obtain benefits illegally from the department;
[...]
84. On December 4, 1992, a certain Marie Gerda Michel submitted an application for benefits, as can be seen from a copy of the attached application, Exhibit AL-30;
85. The residence address provided at that time by Marie Gerda Michel, namely 4497 Louis-Roy Street in St-Léonard, corresponds to an apartment in the building of which the Defendant was co-owner at the time;
86. Marie Gerda Michel received, between December 4, 1992 and April 1, 1995, benefits totalling $22,874.00;
87. In her application for benefits in December 1992, Marie Gerda Michel provided the Department with the Immigration Canada Identity Card, Exhibit AL-21;
88. Marie Gerda Michel, when she applied for a replacement of her health insurance card on or about January 16, 1987, declared that her residence was located at 4493A Louis-Roy in St-Léonard, an address that does not exist, although the premises correspond to the residence of the Defendant, as can be seen from a copy of the attached application, Exhibit AL-31;
89. When the aforementioned Marie Gerda Michel stated that she had damaged her health insurance card on April 10, 1988 and needed to have a new card issued, she gave her home address as 4493 Louis-Roy in St-Léonard and her previous address as 3288 d'Hérelle in Montreal, as can be seen from a copy of the application attached to Exhibit AL-32;
90. This latter address corresponds to the residence of the defendant, while 3288 d'Hérelle corresponds to her previous address, as it appears on the purchase document Exhibit AL-3;
91. On February 5, 1999, I met with Sonia Michaud, an expert in handwriting and documents at the Central Legal Laboratory of Royal Canadian Mounted Police in Ottawa;
92. I submitted as a specimen document the declaration by the Defendant dated January 12, 1999, Exhibit AL-10, and I asked her to compare it to the written statements provided by Marie Gerda Michel to the Department when her file was reviewed and updated;
93. Following this preliminary investigation, Ms. Michaud told me that the expert report that she will shortly provide to me should, subject to correction, be categorical and specifically to the effect that the same individual produced both the specimen documents and the compared documents;
[11] The fraud committed through the use of identity cards in the name of Gerda Michel, which led to the filing of charges against the Appellant, thus occurred between December 4, 1992 and April 1, 1995. The expert opinion provided by Ms. Michaud, according to paragraphs 91, 92 and 93, shows that the Appellant is indeed the one who produced the documents that were used to obtain false identity documents bearing the name of Gerda Michel during the review and updating of her file, i.e., when she applied for a replacement health insurance card on January 16, 1987, and when Gerda Michel stated that she had damaged her health insurance card on April 10, 1988. (See paragraphs 88 and 89).
[12] Jean-Claude Roy was an appeals officer at the Canada Customs and Revenue Agency when the assessment was issued. The assessment is based on the information obtained by Human Resources Development Canada in a memorandum dated May 4, 1999. According to this memorandum, the Appellant used several false identities in order to collect social assistance benefits and GST refunds, specifically the name and social insurance number of Gerda Michel. This memorandum states that Gerda Michel does exist, but that she left Canada more than 10 years ago and lives in the United States. Her identity was allegedly used by the Appellant without her knowledge. This information confirms the results of an investigation into the social insurance cards used by the Appellant, which were seized at her residence and led to her being charged with committing fraud between 1992 and 1995.
[13] Mr. Roy also produced a table confirming the amounts paid to Gerda Michel since 1988, which correspond to the amount claimed by the Minister. It is nonetheless strange that, in calculating the amounts for the years 1988, 1989 and 1990, reference is made to GST credits, whereas the provisions of the Excise Tax Act dealing with the GST did not come into force until January 1, 1992.
[14] At the time of the objection, Mr. Roy met with the Appellant, who repeated to him that Ms. Michel was her friend and that she and her two children had lived with her from 1988 to 1992. During this period, Ms. Michel worked for an employer whose premises were located on St-Urbain Street. He asked the Appellant to provide him with the address and telephone number of Ms. Michel, but he never received them.
[15] Mr. Roy subsequently testified that he had received a telephone call from a person who had identified herself as Gerda Michel and also spoken on the telephone with Counsel for the Appellant. These conversations confirm in large measure the assertions of the Appellant, in particular her admission in the case of Mona Moiseneault and her non-involvement in the other two. They did not, however, prove the transfers to Ms. Michel or her address. Mr. Roy concluded his testimony by acknowledging that he could not clearly establish whether the Appellant had received these amounts, except for the fact that they had been deposited to the account of Ms. Michel and that the Appellant had signing authority for this account and had withdrawn money from it.
[16] The evidence thus reveals that Gerda Michel had requested a replacement for her health insurance card in January 1987, and that she had stated that her residence address was that of the Appellant. In addition, this same woman claimed that she had damaged her health insurance card on April 10, 1988 and requested that a new card be issued, giving the address of the Appellant. The handwriting done during the review and updating of Gerda Michel's file and on a statement by the Appellant are from the same individual, namely the Appellant. The evidence also reveals that Gerda Michel left Canadamore than 10 years ago and lives in the United States. The Appellant had access to a bank account in the name of Gerda Michel and had made withdrawals from it.
[17] For her part, the Appellant maintains that Ms. Michel left Canadain 1992 and that she did not fraudulently obtain the Child Tax Credit that she is being asked to pay. She admits having withdrawn money from this account, but she says that she sent this money to Ms. Michel. No evidence of transfer was submitted. Furthermore, she provided no evidence that would confirm the presence of Ms. Michel in Canadauntil 1992, apart from the address of her alleged employer. She produced no documentation, such as a power of attorney, giving her the right to withdraw money from Ms. Michel's account. One must also wonder why it was necessary to send money to Ms. Michel if Ms. Michel was living with the Appellant until 1992.
[18] It accordingly seems improbable to me that Ms. Michel did not leave Canadauntil 1992, just as the claims of the Appellant that she was sending this money to her seem improbable. It is highly probable that the Appellant began using false identification in the name of Gerda Michel in 1988, as shown by the evidence put forward by the Respondent, and that she thus used this false identification to obtain the tax credits in question.
[19] There is no doubt that only the real Gerda Michel could have enlightened the Court in respect of the Appellant's claims and confirmed them. The fact that this individual was not called as a witness leaves the following questions unanswered: under what authority was the Appellant entitled to withdraw money from her bank account? Did she receive the money to which she was entitled under the Child Tax Credit? Was she really in Canadabetween 1988 and 1992 and was she residing at the Appellant's home? Her absence thus allows me to infer that her testimony would not have been favourable to the Appellant. It must be recalled that in tax matters, the taxpayer is the one who is in the best position to confirm or deny a payment, since in most cases, the taxpayer is the only person who knows the exact facts.
[20] For these reasons, the Appellant, in my view, has not discharged the burden of proof that was incumbent on her. The appeals are accordingly dismissed, with the exception of the one in respect of Micheline Moïse, where the Respondent consents to the appeal being allowed.
Signed at Edmundston, New Brunswick, this 22nd day of April, 2005.
"François Angers"
Angers J.
Translation certified true
on this 6th day of February, 2006.
Garth McLeod, Translator
STYLE OF CAUSE: Antonine Succès and Her Majesty The Queen
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 23, 2005
REASONS FOR JUDGMENT: The Honourable Justice François Angers
DATE OF JUDGMENT: April 22, 2005
APPEARANCES:
|
For the Appellant: |
The Appellant herself
|
|
Counsel for the Respondent: |
Benoît Mandeville |
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario