The taxpayer, who had a secondary school education and a modest income, filed a return prepared by an “accounting firm” (DSC) which he professed not to have read and which claimed a false business loss of $214,176.
Before confirming the imposition of a gross negligence penalty, Russell J referred approvingly to the finding in Torres that wilful blindness can impute knowledge as well as constitute gross negligence, and adopted and applied the Torres indicators as to wilful blindness to find that in the circumstances the taxpayer should have first reviewed the return to ensure its correctness rather than signing the return without any review, or any enquiry of DSC.
Russell J further stated (at paras. 36-37):
[W]hether … false statements or omissions in a return justify a subsection 163(2) penalty is determinable at the time the return is filed.
Accordingly, I do not consider evidence heard that post-dates the filing of the 2009 return containing the false statement is of relevance to the matter of whether or not the herein appealed penalty was properly assessed.