22. Judge Made Due Diligence Defence Applies Where Taxpayer Takes Reasonable Steps
Douglas (2012 TCC 73) is a decision of Woods J. dealing with whether a due diligence defence was available to a taxpayer who prepared his own return for 2008 and knowingly did not file it, or include a form T1135, until March, 2010 on the understanding that no tax for 2008 was payable. The Minister imposed the maximum late filing penalty of $2,500 under s. 162(7) of the Tax Act in respect the late filed T1135. The TCC allowed the appeal finding that, although the penalty under s. 162(7). is a strict one to which no due diligence defence applies, even strict penalties should not be imposed if the taxpayer has taken all reasonable steps to comply with the Tax Act referencing the TCC decision of Home Depot of Canada Inc. (2009 TCC 281). The court concluded that the taxpayer acted reasonably, knowing that no returns are required if no tax is payable and that while a judge made due diligence defence should be applied sparingly, this was a case in which it should be applied.