An individual claimed fictitious expenses in Year 1 and was assessed a s. 163(2) penalty. In Year 2 the individual failed to report income. Could this second failure ground a s. 163(1) penalty? The Directorate referred to the statement in the Explanatory Notes:
This penalty will typically apply to the suppression of amounts that are included in determining net income, but will not normally apply to understatements of income attributable to errors in the characterization of income or in its computation if all amounts required to be included in computing income are reported.
The Directorate then stated:
Previously, the Income Tax Rulings Directorate had expressed the view that the penalty under subsection 163(1) should be calculated on the basis of the gross amount that should have been included in computing a person's income for a particular taxation year and not on the net amount (i.e., the amount that has not been included in computing income net of any deduction that is allocable to that amount).
Consequently, where a person claims unjustified expenses in respect of a particular amount of income, we do not believe that the penalty under subsection 163(1) can apply since it is not in those circumstances a failure to report an amount that should have been included in computing income for a particular year.