Whealy v. Canada, 2005 DTC 5276, 2005 FCA 190

Date: 20050516

Docket: A-449-04

A-448-04

Citation: 2005 FCA 190

CORAM:         SEXTON J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

THOMAS WHEALY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

AND BETWEEN:

ROBERT SISKIND

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Edmonton, Alberta, on May 16, 2005.

Judgment delivered from the Bench at Edmonton, Alberta, on May 16, 2005.

REASONS FOR JUDGMENT OF THE COURT BY:                                        SEXTON J.A.

CONCURRED IN BY:                                                                                    EVANS J.A.

PELLETIER J.A.          

Date: 20050516

Docket: A-449-04

A-448-04

       Citation: 2005 FCA 190

CORAM:         SEXTON J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

THOMAS WHEALY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

AND BETWEEN:

ROBERT SISKIND

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT OF THE COURT

Delivered from the Bench, at Edmonton, Alberta, on May 16, 2005.

[1]                We are not persuaded that the Tax Court Judge made a palpable and overriding error when he concluded that the appellants did not have a view to profit with respect to their 5.4% interest in the two gas wells, and therefore were not engaged in a partnership so as to permit the deduction of the losses realized on the sale of the real estate.

[2]                The appeal of Whealy is allowed in part and his reassessment is referred back to the Minister for reconsideration and reassessment on the basis that no ss. 15(1) benefit in the amount of $83,333.00 should be included in Whealy=s 1987 taxation year.

[3]                In all other respects, the appeal is dismissed with costs.

AJ. Edgar Sexton@

                                                                                     ________________________________

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-449-04 & A-448-04

APPEAL FROM A JUDGEMENT OF THE TAX COURT OF CANADA DATED JUNE 8, 2004, DOCKET NO. 98-793(IT)G

STYLE OF CAUSE:                    THOMAS WHEALY v. HER MAJESTY THE QUEEN

                                                       ROBERT SISKIND v. HER MAJESTY THE QUEEN            

PLACE OF HEARING:                                                        Edmonton, Alberta

DATE OF HEARING:                                                           May 16, 2005

REASONS FOR JUDGMENT OF THE COURT            

DELIVERED FOR THE BENCH BY:                               The Honourable Mr. Justice Sexton

CONCURRED IN BY:                                                         The Honourable Mr. Justice Evans

The Honourable Mr. Justice Pelletier

APPEARANCES: