Roland St-Onge:—This appeal is from an assessment of a penalty for late filing of the appellant’s income tax return for the taxation year 1970.
The undisputed facts show that the appellant was a client of Mr Donald G Clandinin, Accountant; that the latter filed on behalf of the appellant a 1970 T1 General tax return form marked “Temporary Return” which was not signed and contained no information other than an income “estimate” of $700 as net farming income; that on April 30, 1971 the said temporary return was received by the respondent at the District Taxation Office, Saskatoon, Saskatchewan; that on May 18, 1971 a further 1970 T1 General individual income tax form in the name of the appellant was provided to the respondent by the said Mr Clandinin containing all the prescribed information.
The respondent contended that the initial 1970 T1 General individual income tax form provided to him on April 30, 1971 did not constitute a return of the income for the appellant’s 1970 taxation year in prescribed form and containing the prescribed information as required by the provisions of subsection 44(1) of the Income Tax Act; that the second return did constitute a return of the income of the appellant for his 1970 taxation year in prescribed form but was received by the respondent after April 30, 1971.
The labelling of a tax return by adding the words “Temporary Return” is a way of contravening the law which requires that a tax return in the case of an individual should be filed on or before April 30.
Subsection 55(1) states that “Every person who has failed to make a return as and when required by subsection (1) of section 44 is liable to a penalty . . .”’. Subsection 44(1) requires that a taxpayer (an individual as is the case here) make his return “on or before April 30”. There is no mention made of anything in the nature of a “temporary return” in the Income Tax Act, and the fact that the appellant used a prescribed form mentioning therein his name and address, an exemption, and an estimated income (which was not intended to even show the approximate income of the taxpayer) is not sufficient to constitute a return within the meaning of subsection 44(1). It is true that the Minister could have assessed a penalty under the provisions of subsection 55(3) or 56(2) but this does not prevent him from using a less severe section against the appellant, and the fact that in previous years the accountant was able to get by with such a procedure as the filing of a “temporary return” does not prevent the Minister from putting an end to this practice because he is not bound by the laches of his servant (William Berrian Salter v MNR, 6 Tax ABC 193; (1952), 6 DTC 148).
By an agreement between the parties the reasons for judgment in this case will also apply in the case of Elmer T Carlson.
For the above reasons the appeal is dismissed.
Appeals dismissed.