Benchetrit v. The Queen, docket 1999-2060(IT)I (Informal Procedure)

[OFFICIAL ENGLISH TRANSLATION]

1999-2060(IT)I

BETWEEN:

MAURICE BENCHETRIT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Appeals heard on common evidence with the appeals of Philip Ashley 1999-2906(IT)I, on June 28, 2000, at Montréal, Quebec, by

the Honourable Judge Lucie Lamarre

Appearances

Agent for the Appellant:                       Émile Malka

Counsel for the Respondent:                Anne-Marie Desgens

JUDGMENT

          The appeals from the assessments made under the Income Tax Act ("Act") for the 1995 and 1996 taxation years are allowed, without costs, and the matter is referred back to the Minister of National Revenue for reconsideration and reassessment on the basis that:

1. the taxable amount of the benefit conferred on the appellant by the use of a condominium in Florida will be reduced from $11,337 to $8,337 for the 1995 taxation year and from $10,138 to $3,138 for the 1996 taxation year;

2. the taxable amount of the dividend received by the appellant is set at $37,500 for the 1996 taxation year, as reported by the appellant in his amended income tax return dated June 17, 1997;

3. the repayment of a loan by a shareholder (paragraph 20(1)(j) of the Act) is $23,291 for the 1996 taxation year, as reported by the appellant in his amended income tax return dated June 17, 1997;

4. the value of the benefit relating to the use of an automobile is $5,369 for the 1995 and 1996 taxation years, representing the personal portion, that is 40 percent, of the use of the automobile by the appellant.

Signed at Ottawa, Canada, this 25th day of July 2000.

"Lucie Lamarre"

J.T.C.C.

Translation certified true

on this 11^th day of September 2003.

Sophie Debbané, Revisor

[OFFICIAL ENGLISH TRANSLATION]

Date: 20000725

Docket: 1999-2060(IT)I

BETWEEN:

MAURICE BENCHETRIT,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

REASONS FOR JUDGMENT

Lamarre, J.T.C.C.

[1]      These are appeals from assessments made by the Minister of National Revenue ("Minister") under section 15 of the Income Tax Act ("Act") for the appellant's 1995 and 1996 taxation years.

[2]      By those assessments, the Minister added to the appellant's income amounts of $11,337 and of $10,138 respectively for the 1995 and 1996 taxation years as benefits conferred on a shareholder by the use of a condominium in Florida. The Minister also added amounts of $12,190 and of $12,077 respectively to the appellant's income for those years as benefits conferred on a shareholder by the use of an automobile. The Minister moreover added the amount of $14,209 to the appellant's income for the 1996 taxation year in respect of a taxable dividend. That amount corresponds to the difference between the $37,500 received as a dividend and the $23,291 corresponding to the repayment of a loan by a shareholder.

[3]      The parties informed the Court at the start of the hearing that they had consented to judgment on the matter of the benefit relating to the use of the automobile and on the matter of the taxable dividend.

[4]      The evidence at the hearing concerned only the calculation of the benefit relating to the use of the condominium in Florida.

[5]      In view of the decisions by the Federal Court of Appeal in The Queen v. Fingold, 97 DTC 5449, and in Youngman v. The Queen, 90 DTC 6322, I find the method of calculation used by the respondent in her Reply to the Notice of Appeal was correct, with one exception. The appellant showed that the maintenance expenses incurred by the company were overstated by $3,000 in 1995 and by $7,000 in 1996.

[6]      Having regard to the partial consent to judgment filed in Court with respect to the use of the automobile and the taxable dividend and to the evidence that was established with respect to the use of the condominium in Florida, it is decided that:

(a) the taxable amount of the benefit conferred on the appellant by the use of a condominium in Florida will be reduced from $11,337 to $8,337 for the 1995 taxation year and from $10,138 to $3,138 for the 1996 taxation year;

(b) the taxable amount of the dividend received by the appellant is set at $37,500 for the 1996 taxation year, as reported by the appellant in his amended income tax return dated June 17, 1997;

(c) the repayment of a loan by a shareholder (paragraph 20(1)(j) of the Act) is $23,291 for the 1996 taxation year, as reported by the appellant in his amended income tax return dated June 17, 1997;

(d) the value of the benefit relating to the use of an automobile is $5,369 for the 1995 and 1996 taxation years, representing the personal portion, that is 40 percent, of the use of the automobile by the appellant.

Signed at Ottawa, Canada, this 25th day of July 2000.

"Lucie Lamarre"

J.T.C.C.

Translation certified true

on this 11^th day of September 2003.

Sophie Debbané, Revisor