Date: 19980514
Docket: A-194-96
CORAM: STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
Appellant
- and -
Heard at Ottawa, Ontario, Thursday, May 14, 1998
Judgment delivered from the Bench on Thursday, May 14, 1998
REASONS FOR JUDGMENT BY: LINDEN J.A.
Date: 19980514
Docket: A-194-96
CORAM: STONE J.A.
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
Appellant
- and -
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench, at Ottawa on Thursday, May 14, 1998)
LINDEN J.A.
[1] We have not been persuaded that the Tax Court Judge made any reversible error.
[2] Issue estoppel is not available to assist the appellant because the Tax Court Judge relied only on the "gross negligence" language of section 163(2) of the Income Tax Act and did not rely at all on the "knowingly" language which, if used, may arguably have had some significance in the light of the Provincial Court decision (see Van Rooy v. M.N.R. (1988), 88 D.T.C. 6323).
[3] In our view, the Tax Court Judge used the correct legal test and there was sufficient evidence to support the finding of gross negligence based on the "indifference" of the appellant.
[4] Further, the Tax Court Judge correctly found that the receipt was on the appellant's own account as being an "adventure in the nature of trade" and that the corporate machinations did not alter this, some of the evidence being described as "feeble" and some of the arguments being called "fanciful" by the Tax Court Judge.
[5] As for the alleged $50,000 interest error in 1989, the decision turned mainly on the matter of the appellant's credibility, and we have not been convinced that there is any need to interfere with that finding of the Tax Court Judge.
[6] There is nothing in Farm Business Consultants (1996), 96 D.T.C. 6085 or in Venne, [1984] C.T.C. 223 per Strayer J. that is inconsistent with our decision or with the Tax Court Judge's decision in this case.
[7] The appeal should be dismissed with costs.
"A.M. LINDEN" J.A.
FEDERAL COURT OF APPEAL
Date: 19980514
Docket: A-194-96
BETWEEN:
HALIM F. SAIKALI
- and -
HER MAJESTY THE QUEEN
REASONS FOR JUDGMENT
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