Kerr v. The Queen, 89 DTC 5348, [1989] 2 CTC 112 (FCTD)

Martin, J.: —In the course of reviewing the plaintiff's income tax returns for the taxation years from 1976 to 1979, it became apparent to the Revenue Canada tax auditors that the plaintiff was not reporting all of her income. Since at least from 1972 to October 1975 the plaintiff had derived a major portion of her income from earnings as a prostitute and from the earnings of other prostitutes. In October of 1975 the plaintiff incorporated a company, Nancy Lee Enterprises Inc., of which she became an employee and through which she continued to carry on the prostitution business at the height of which she had a minimum of 40 prostitutes working for her.

It is not surprising that neither she nor her limited liability company kept the normal type of records that Revenue Canada has come to expect from a business. The plaintiff says that after paying expenses all money received from the prostitution operations was deposited to a bank account. Deposit slips were made out and put in a box. Bank statements were likewise kept in the same box and at the end of the company's fiscal year the box would be delivered to the company's accountant, a Mr. Fisher for the first years and thereafter a Mr. Zivak (Zivak), who were somehow expected to reconstruct the company’s financial affairs and prepare income tax returns for the plaintiff's signature as president of the company.

The plaintiff herself filed tax returns for the years under review which returns showed her earnings, as employment income from her company, as a moderate salary. Although the company was in fact paying significant personal expenses on behalf of the plaintiff these amounts were not identified in the plaintiff's or her corporation's returns. When Revenue Canada's auditors saw that the company was keeping inadequate records and that the plaintiff's style of living appeared to be well beyond her reported income they concluded that they should prepare a net worth assessment of the plaintiff's assets for the taxation years under review with a view to determining the amount, if any, of unreported income.

In the early stages of this review there was a degree of co-operation between the plaintiff and Revenue Canada's auditor, Philip Keirstead (Keir- stead). She authorized him to obtain copies of all bank statements, deposit slips and any information which her bankers might be able to provide with respect to her company's banking activities. She also authorized her brokers to release to him any information which they might have with respect to her investment accounts and, finally, she authorized her accountant to release any documents or working papers he might have. She informed Keirstead that her accountant (Zivak) would be her and her company's representative in any matters relating to taxation.

The plaintiff's co-operation with Keirstead in the early days of his review was not complete. Counsel for the Minister has characterized it as disclosing to the taxing authorities those things which the plaintiff believed would be discovered in any event and withholding information which the plaintiff considered could not be discovered by Keirstead. In my view this assessment of the plaintiff's co-operation with the defendant is reasonably accurate. Although the plaintiff did give or authorized the giving of information to Keirstead in the beginning, when it became apparent that, in order to complete the assessments, a statement of personal expenditures for the years under review would be required the plaintiff's co-operation came to an end.

Her counsel suggests that it was not so much a refusal to co-operate or assist in the preparation of this statement but an expression on her part of the impossibility of being able to reconstruct her personal expenses over a prior four-year period. I can appreciate that there would be some difficulty in her doing this with any great degree of accuracy but I am sure she considered at the time that a difficulty for her would be an impossibility for a stranger and deliberately elected not to assist in the preparation of the statement of her personal expenses so that Keirstead would either be frustrated in his attempt to do so or, alternatively, that any statement prepared without her assistance would be so inaccurate that it could be successfully attacked as being meaningless.

In that vein an attack was mounted on the accuracy of Keirstead's net worth because, for among other reasons, it failed to disclose an alleged partnership with the plaintiff's husband. Keirstead was closely questioned on why he failed, in 1980 when he was preparing the statement, to investigate the possibility of the plaintiff's husband being a partner in her prostitution business. Keirstead said he had been introduced to the plaintiff's husband in 1980 and that the husband claimed to have given gifts to the plaintiff. As neither the husband nor the plaintiff had mentioned a partnership and as the plaintiff only raised it shortly before this trial, some nine years later, I can see no justification for the plaintiff's criticism or any reason why Keirstead would have had cause in 1980 to search out a possible partnership arrangement between the plaintiff and her husband.

Similarly the plaintiff criticized Keirstead for not obtaining the detailed transactions relating to a bank account in which, it was suggested by the plaintiff, there were considerable personal funds owned by her as of December 31,1975. Keirstead saw no reason to investigate the account because, when meeting with the plaintiff's accountant, who was authorized by the plaintiff to speak on her behalf in taxation matters, the accountant indicated to him that the bank account was a corporate and not a personal account.

In my view the plaintiff knew full well the significance and importance to her of establishing the highest possible net worth on the opening date of the net worth assessment by Revenue Canada. Any asset to which she could point that Keirstead had omitted from the opening assessment would have the effect of reducing the increase in the subsequent years' net worth and thus the income necessary to create that increase. If in fact there were personal funds in the bank account which would have that effect the plaintiff should have pointed that out to Keirstead at the earliest possible opportunity. Certainly when she saw the net worth statements in 1980 which had omitted to include such amounts she should have pointed it out to Keirstead at that time. By waiting until years after she had access to the net worth statements when it was impossible to verify the amounts, her claim that there were significant personal funds in the account leads me to conclude that the reason for not pointing this out in a timely manner was that, contrary to what the plaintiff suggests, there were no such funds in existence.

As a result of the net worth statements, with various adjustments and some corrections made in the course of the trial, the Minister has determined the plaintiff's unreported income for the years under review to be as follows (Ex. P-7):

Assuming there was a partnership between the plaintiff and her husband the plaintiff's expert, at the beginning of the trial, calculated the changes in the plaintiff’s actual and reported income as follows (Ex. P-2):

Assuming there was no partnership between the plaintiff and her husband, and making other adjustments which the plaintiff's expert considered warranted, the plaintiff's expert, at the end of the trial, calculated the changes in the plaintiff's actual and reported income as follows:

In my view Ex. P-2 must be disregarded on the basis that it assumes that the prostitution business was carried on by the plaintiff in partnership with her husband. As already mentioned this very significant factor was only recently raised by the plaintiff who claimed she had a 50/50 partnership with him. Naturally she cannot point to a written partnership agreement as one would hardly expect a written agreement in this type of business. The defendant, however, can point to the fact that the prostitution business was incorporated and carried on under the name of Nancy Lee Enterprises Inc. The defendant can also point to invoices from Nancy Lee Enterprises Inc. to clients of that firm for prostitution services and to payment for those invoices being deposited in the bank account of Nancy Lee Enterprises Inc. This arrangement is not consistent with a partnership.

Neither of the plaintiff's or her company's accountants were called to give any evidence of a partnership between the plaintiff and her husband. Although the plaintiff's husband was not called to give evidence of a partnership he did meet with Keirstead in 1980 and mentioned gifts which he gave to the plaintiff but made no suggestion of a partnership arrangement at that time. Although the plaintiff insisted it was a 50/50 partnership with her husband she never said or indicated that her husband ever got 50 per cent of the profits.

Her evidence of a partnership consisted in saying that her husband was a partner, that he had made some deposits of prostitution income to the company's account, that he brought new prostitutes to the business, that through him the plaintiff became known or better known to one of Toronto's more notorious Madams, and that both she and her husband had been jointly charged and convicted on prostitution related charges.

Not only is all that evidence equivocal in establishing a partnership but the plaintiff's positive evidence concerning her relationship with her husband militates against such a finding. It was apparent that she was a tough business person. When she and one other prostitute set up business in 1972 the plaintiff insisted on keeping all the money herself. During the time she alleged to have been in partnership with her husband she insisted on the same arrangement and would not let him keep any of the money from the business. She says he was an alcoholic, a drug addict, and addicted gambler and a spendthrift who could not be trusted with money. All income was deposited to the company's account and, she says, occasionally she would let him have some money. Given those circumstances and the bizarre circumstances surrounding her alleged kidnapping by her husband prior to their marriage, her claim to have been in partnership with her husband is nothing but a fabrication.

In several ways this matter parallels Lisunia Chernenkoff v. M.N.R., [1949] C.T.C. 369; 49 D.T.C. 680. In both cases the taxpayers' statements of claim alleged that the returns as filed were accurate and asked that the Minister’s assessments be set aside. At the trial, however, in both cases, the taxpayers were content to attack items in the Minister's computations based on the taxable increase in the taxpayers' net worth over the period in question. In neither case did the taxpayer make any attempt to establish in any way that the taxpayer did not have the taxable income for which she had been assessed.

Given those circumstances Cameron, J. observed, at page 683:

In effect, the appellant agrees that the "net worth" computation of her income is a satisfactory basis for arriving at her taxable income, but that some of the items — those which I have indicated — are wrong. When these are corrected in accord- ance with the evidence adduced — so she states — the result is that there is no taxable income for any of the years in question.

My opinion is that the appellant must do far more than she has attempted to do here if her appeal is to be successful. There can be no question that the onus lies on the appellant and that, in my view, means that she must establish affirmatively that her taxable income was not that for each of the years for which she was assessed. Two courses were open to her, the first being to establish her income with proper deductions and allowances, and that course could quite readily have been followed. [. . .]

In the absence of records, the alternative course open to the appellant was to prove that even on a proper and complete “net worth” basis the assessments were wrong. But that also she has failed to do. She submits that all she needs to do is to establish certain inaccuracies in the amounts and that these items must be adjusted accordingly. But it will be kept in mind that the "net worth" increase was established on her own statements and it was amply proven at the trial that these statements were most inaccurate and incomplete.

In this matter the plaintiff had adopted the same approach i.e. she has accepted the net worth computations as the appropriate basis for arriving at her taxable income and has attempted to show certain inaccuracies in these computations so that, presumably, I am to take the Minister’s computations as adjusted as accurately reflecting her income for the several years under review. Keirstead's attitude in this approach was, in my view, a generous one. Where there was, in his opinion, a little more than the plaintiff's bare assertion of an expenditure or an asset he made the appropriate adjustment.

In this respect he allowed that the plaintiff had, on December 31, 1975, cash on hand of $9,500 because there was evidence that she had a certified cheque for that amount in January of 1976. He also allowed $1,080 for shares in an American mutual fund and $44,100 in respect of mortgages held by the plaintiff as of December 31,1975 (Ex. P-7). The net result was to increase the December 31, 1975 opening net worth from $71,375 to $127,055.

Other adjustments which he made in the plaintiff's personal expenditures [reducing the property tax and house insurance, eliminating the fuel charges, some of the cable charges and adjusting the hydro charges, so as to include the costs of heating the plaintiff’s premises, and other relatively minor adjustments) resulted in reducing her estimated personal expenditures from $23,474 in 1976 to $21,978 and similar decreases in the other years under review to give the revised unreported income as indicated in Ex. P-7.

Keirstead would not accept other adjustments suggested by the plaintiff for a number of reasons. I will deal with the major ones.

He refused to accept the plaintiff's suggestion that she had $20,000 cash on hand, over and above the $9,500 which he allowed, on December 31, 1975. As near as I can determine this amount claimed in the plaintiff's expert's net worth submission arose when the plaintiff discovered that a prostitute, Jennifer, who shared her apartment in October of 1975 had set her up to be kidnapped by a former policeman and the man who eventually became her husband. When the plaintiff discovered that it was her apartment mate who had made the kidnapping possible she said she returned to the apartment and stole $20,000 in cash from Jennifer by way of making her pay for her part in the affair. The evidence does not disclose Jennifer's reaction to this theft but in the absence of any I cannot fault Keirstead for refusing to include that amount in the plaintiff's opening net worth.

The reason for his refusal to do so became even more apparent when the $20,000 is shown to be related to the kidnapping and the additional $15,000 in jewellery which Keirstead also refused to include in his opening net worth. In this respect the plaintiff claimed that Jennifer had given sufficient information to one Peter Kodis and an ex-police officer to enable them to trick the plaintiff into meeting them at the Royal York Hotel in Toronto in late October 1975. The plaintiff says that when she identified herself she was taken in a car to a field in northern Toronto where her two abductors had previously dug a grave. She said she was thrown into the grave and the two started to bury her alive.

In the course of doing this they indicated that all they wanted from her was money. As she had none with her she could not accommodate them in this respect but they advised her that she had money in a bank account. She acknowledged this but said she had not a chequebook with her. They then took her to a motel to await banking hours on the following day when presumably she would give them a cheque for, if my memory serves me correctly, $25,000. Content with this arrangement the two tied up the plaintiff in the motel and went to sleep, having first removed from her finger a diamond ring having a value of $15,000.

The plaintiff was able to escape her bonds and in due course reported the kidnapping and theft of the ring to the police. Apparently the two were charged and released on bail. While on bail Kodis, who was a drug trafficker and had never seen the plaintiff before the kidnapping, called on the plaintiff and asked that she not give evidence at his forthcoming trial. She says that she indicated she would be prepared to do that providing that he paid her for the aggravation which he had caused her. Kodis, who displayed a keen sense of both human nature and the offence of blackmail, disclosed that he had recorded this conversation. According to the plaintiff he then suggested, and she agreed, that they should get married so that she would not be able to give evidence at his trial. Once married, or once she had determined to marry Kodis, she or he informed the police who then withdrew the criminal charges against him.

Although, according to the plaintiff, it was at first only a marriage of convenience, it later developed into something more permanent, even if a little shaky, when they began to live together and it eventually blossomed into a full scale partnership in the prostitution business with Kodis developing so much faith in his wife that he not only turned over to her all his share in the prostitution revenues but also all the income from his cocaine and heroin business.

The plaintiff says that after their marriage in March of 1976 Kodis was such a help to her in her business that in that year alone her income (i.e. the company's income) from prostitution tripled. There are two endings to this tale.

The first is that the plaintiff had insured the ring for $15,000 and filed a claim with her insurance company for that amount. In due course the insurance company paid the full amount of the claim. Accordingly the plaintiff says that on December 31, 1975 her opening net worth should reflect this additional allocation for jewellery even though at that stage it was only a receivable from her insurance company. There are one or two difficulties with this account. The plaintiff did not seem to think that being married to the man who had stolen the ring would cause any difficulty in her claim. As well she did not seem to think it unusual that he never returned the ring after the wedding or explained what happened to it. As I recall the evidence in this respect it was that the subject never came up. Furthermore the plaintiff was unable to recall either the name of the insurance company, the approximate date on which she had been paid, or the account to which the cheque had been deposited. After reflecting on this latter difficulty she allowed as how she may have taken the cheque to the bank on which the insurance company had drawn it and cashed it there. Once again it is difficult to fault Keirstead for not including this amount in the plaintiff's opening net worth.

The other ending to the tale is the plaintiff's comment that her business revenues increased threefold with the arrival of Kodis in 1976. This evidence was given as background to support the plaintiff's contention that there existed a partnership between her and Kodis. Presumably if Kodis' entrance on the scene served to triple the plaintiff's prostitution income it would not be unreasonable to think that the plaintiff would be willing to enter into a partnership with him. In this respect the Minister's assessments indicated that the plaintiff had substantial income for the year ending December 31, 1976. The difficulty with the plaintiff's evidence is that of her expert. In this respect her expert evidence is to the effect that, far from increasing the profitability of the plaintiff's business in 1976, the entrance of Kodis into the business resulted in a loss of $22,800 and that she over-reported her income to Revenue Canada by a total of some $37,000. I am able to say without hesitation that, whatever faults the plaintiff might have, over-reporting her income to Revenue Canada is not one of them.

I have gone to some pains to set out this bizarre story of the $20,000 stolen from her apartment mate, the stolen ring and insurance payment, the kidnapping and marriage to indicate the reason why I cannot accept the plaintiff's evidence. It is not necessary, in my view, to analyze the obvious. Her story is so patently false that no credence can be given to it.

Having said that it follows that I do not accept her evidence denying that she had a loan of $25,000 from Yorkton Securities on December 31, 1975. Keirstead saw a reference to this in the working papers of the plaintiff's original accountant, Mr. Fisher. Her second accountant, Zivak, did not dispute the existence of the loan. I am satisfied that Keirstead had reasonable grounds for including this amount as a liability in his opening December 31, 1975 net worth and that the plaintiff has not discharged the onus upon her to show that it should not be included.

In my view there should be two other adjustments to Ex. P-7. There should be added to the plaintiff’s assets as of December 31, 1975 the sum of $2,500 on account of the furnishings which she had in her Spadina Avenue apartment and which she said she had sold for that amount when she left to move to the house which she had purchased at Clarendon Avenue. As it would be reasonable to conclude she had to replace those furnishings with other furnishings at her new residence the amount of $2,500 should be carried on her net worth throughout the five year-ends under review.

It is common ground that the net worth is completed on a cash basis so that the expenditure in 1976 should not be reflected in the December 31, 1975 year-end. In this respect the evidence is conclusive that the income tax payments shown on page 2 of Ex. P-7 were not paid in the years indicated but in the year immediately following. The sum of $2,314 indicated as being an income tax payment made in 1976, for example, is the amount of the income tax paid by the plaintiff in respect of the 1976 taxation year which amount could not have been paid in 1976 but, rather, was paid in 1977. The same, with minor inaccuracies, applies with respect to the other years under review.

Keirstead agreed it was a remarkable coincidence that the amount he claims to have been paid in 1976 was precisely the same as the income tax assessed for that year and was unable to explain it.

As the amounts indicated are the tax paid in respect of the years for which they are indicated but paid in the following years I direct that each income tax payment be moved forward one year to reflect the year in which the tax was paid. This, of course, will result in an absence of any tax payment for the year ending December 31, 1976. In this respect I direct that there be included in Revenue Canada's statement, for the year ending December 31, 1976, an amount equal to the amount of the plaintiff's income tax (federal and provincial) due as shown on the plaintiffs income tax return for the 1975 taxation year.

As a matter of departmental policy Keirstead included as an asset for each financial year under review, on a cumulative basis, the total amounts withdrawn from the plaintiff's Canadian Imperial Bank of Commerce account where he could not identify the purpose of the withdrawal. Counsel for the plaintiff agreed that some of these funds may well have been used for the purchase of assets which were not otherwise shown in the plaintiff's assets but submitted that the amounts represented by small to medium withdrawals were more likely used for personal living expenses and should not, therefore, appear in the balance sheet portion of the statement. I agree in general with this submission but in the absence of any credible evidence from the plaintiff to indicate what, if any, portion of the withdrawals went for personal expenses I am not prepared to say that any specific withdrawal was not for the purchase of a capital asset.

The plaintiff's burden in this matter is not just to make an argument that some withdrawals were likely to have been for personal expenses but to show that certain of the withdrawals were on account of personal items. When the plaintiff refused to assist Keirstead in the preparation of the net worth statements Keirstead acted properly, in my view, in treating the unidentified withdrawals as being on account of capital amounts. Of course this does not mean that each withdrawal was in fact expended for capital items but only that it would be presumed to have been so spent until the plaintiff discharged the burden on her to show that it was otherwise expended. This the plaintiff has failed to do.

Counsel for the plaintiff argues that because the plaintiff purchased a house it is reasonable to assume that some of the unidentified withdrawals had been made to furnish the house and suggests that the amount of unidentified withdrawals be reduced by an amount equal to the cost of purchasing furnishings for the house. In my view this would not alter the overall effect of the net worth statements for, if an amount is to be taken out of the unidentified withdrawals and a corresponding amount entered in furnishings, the balance sheet portion of the statement will not change.

The final significant item raised by the plaintiff is the matter of gifts. The plaintiff was at pains to indicate the many men who gave her substantial gifts unconnected with services which she provided. Her first employer is said to have given her a $15,000 ring, her friend Cohen was said to have given her $50,000 in gifts, another friend at least $100,000, and a fourth thousands upon thousands of dollars which he obtained as a result of winnings from his race horse which raced in fixed horse races.

Keirstead allowed as gifts the sum of $39,750. Through her expert and her counsel she has claimed as additional gifts, not the many thousands of dollars which she claimed to have received, but only the sum of $20,000 which she claimed to have received from Cohen. Cohen himself gave evidence to the effect that he had given a total of $35,000 to the plaintiff, $20,000 of which Keirstead had disallowed because he could not match a withdrawal in Cohen's accounts with a deposit in the plaintiff’s account and because he had no other evidence that a specific payment had been made. The plaintiff pointed to the sum of $15,000 which had been deposited to her account in April of 1978 which allowed her to post bail in that amount and suggested that the $15,000 must have come from Cohen. Cohen himself had no recollection of paying such an amount. All he could recall was that he had given a cheque to the plaintiff's lawyer for $5,000. It is true that Cohen said he had given a total of $35,000 to the plaintiff but he was vague about when and in what amounts. The plaintiff too was vague, except for her suggestion with respect to the $15,000 bail money of which Cohen had no recollection.

Counsel for the plaintiff urged me to accept the truth of Cohen's evidence as being from one who came forward to tell the truth in spite of any embarrassment which might result. I agree that he appeared reluctant but I was left with the impression that he gave evidence to avoid some embarrassment which might occur had he not done so. I hasten to add that this is complete speculation on my part and is irrelevant because in my view his evidence was not sufficiently detailed or credible for me to be able to conclude that the plaintiff had discharged the burden upon her to show that the alleged gifts by Cohen had in fact been made.

Through her expert the plaintiff claimed a portion of a number of expenses (taxes, meals, telephone, automobile, medical, house cleaning, heating, interests, insurance, etc.) as expenses incurred in earning business income. These were disallowed by Keirstead, and properly so, because the plaintiff was an employee of the company which carried on the business. In so far as she was in the business of prostitution it was on her employer's account and not on her own and being an employee she was not entitled to deduct the amount claimed from her employment income.

Through her expert the plaintiff also claimed capital cost allowance on the house and furnishings, presumably in her capacity as an owner or landlord who leased them to her company which was carrying on the business. There might have been some merit to this claim had it been raised at the time she filed her income tax returns so that the temporary relief allowed at that time could be recovered by way of recapturing the depreciation upon the sale or disposition of the assets. However these assets have now been disposed of and the possibility of Revenue Canada recovering, by way of recapturing the depreciation, any amount which might now be allowed as capital cost allowance is no longer possible. That being so this does not seem to be an appropriate case to allow capital cost allowance at this time.

In addition to the specific items with which I have dealt there may have been some other minor adjustments which counsel for the plaintiff argued should be made. I look at these in an overall way and have concluded that Keirstead has been both fair and conservative in his approach. In my view these minor adjustments which could be made are offset by that approach and the fact that the plaintiff has failed overall to discharge the burden of showing that her taxable income for each of the years under review was not that upon which she was assessed and, on that account, her appeal against the assessments, except as they are directed to be altered herein, will be dismissed.

In addition to the reassessments the Minister has imposed penalties on the plaintiff under the provisions of subsection 163(2) of the Income Tax Act. Counsel for the plaintiff submits that as there was no gross negligence and as the Minister had not established the precise quantum of unreported income there could be no penalties imposed.

The proposition that the Minister should establish the precise quantum of understated income before a penalty can be imposed is supported by Fortis et al. v. M.N.R., [1986] 2 C.T.C. 2378 at 2386; 86 D.T.C. 1795, where the Court found that because the unreported income as determined by a net worth assessment was at best an estimate no penalty could be imposed.

If that is the case then it would follow that there could never be a penalty imposed where there has been a net worth assessment. In order to support a penalty under subsection 163(2) it is not necessary, in my view, to establish precisely the exact quantum of unreported income. It is sufficient that the Minister establishes that there has been gross negligence or circumstances amounting to gross negligence in making a false statement in an income tax return.

In this case the plaintiff, through her counsel and expert, admits that there has been an under-reporting of income over the period in review. The only question for the Court to determine is the amount of the income under-reported. The plaintiff admits that proper business books of accounts were not kept. This may be good practice if one is conducting an unlawful business but Revenue Canada is not concerned with the source of the income. It is only concerned that proper records are maintained so that the amount of the income can be reasonably verified. In this case I have found that there has been in each of the years under review a substantial amount of income under-reported, from two to three times the amount of income actually reported. The plaintiff has offered no explanation whatsoever. Instead she has merely argued that there are some inaccuracies in the Minister's calculations. Indeed, even her own expert witness concedes that in two of the four years under review unreported income is more than reported income.

It was negligent of the plaintiff not to keep adequate records disclosing her income and in the case of the very substantial difference between her reported income and her actual income and her failure to offer any credible explanation for the difference I cannot say she was anything but grossly negligent in falsely stating the amount of her income in her income tax returns for each of the four years under review. Under these circumstances I will dismiss the plaintiff's appeal against the imposition of the penalties imposed.

The defendant indicated that it was not asking for costs so there will be no order in that respect. Counsel for the plaintiff asked to reserve his right to address me on the matter of costs following my decision. As I have dismissed his client’s appeal and as costs were not requested or awarded I presume that there is nothing on which he would wish to address me.

Counsel for the defendant is directed to prepare a draft judgment for my consideration. It should be submitted to counsel for the plaintiff for approval as to form. If counsel cannot agree on the form of the formal judgment each may submit a draft for my consideration at which time I will prepare and file a formal judgment or give counsel the opportunity to address me on the matter, whichever seems more appropriate under the circumstances.

Appeal dismissed.