Date: 19971112
Docket: A-547-93
CORAM: DENAULT, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
MORGAN DOWHAN LTD.
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Edmonton, Alberta, Wednesday, November 12, 1997.
Reasons for Judgment delivered from the Bench at Edmonton, Alberta, Wednesday, November 12, 1997.
REASONS FOR JUDGMENT BY: ROBERTSON, J.A.
Date: 19971112
Docket: A-547-93
CORAM: DENAULT, J.A.
DÉCARY, J.A.
ROBERTSON, J.A.
BETWEEN:
MORGAN DOWHAN LTD.
Appellant
Respondent
REASONS FOR JUDGMENT
ROBERTSON, J.A.:
[1] This is an appeal from a decision of the Minister of National Revenue refusing registration of a pension plan under section 147.1 of the Income Tax Act. The only issue before us is whether the plan was primarily for the benefit of a significant shareholder, John Morgan, as of June 1, 1988. In written argument, the appellant took the position that the Minister disregarded information provided after the application for registration of the plan had been submitted. Specifically, it was alleged that the Minister disregarded both oral and written evidence that Mr. Morgan did not own any shares in the capital stock of the appellant, on or after June 1, 1988 and that in fact such share(s) were being held in trust for certain employees of the appellant as of that date.
[2] During oral argument counsel for the appellant conceded, and in our opinion wisely so, that Mr. Morgan was a significant shareholder as of the critical date. That being the case we are not prepared to entertain what amounts to an alternative argument not raised in the memorandum and, accordingly, the appeal must be dismissed.
"J.T. Robertson" J.A.
EDMONTON, ALBERTA
November 12, 1997
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[11] NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: A-547-93
STYLE OF CAUSE: Morgan Dowhan Ltd.
v. Her Majesty the Queen
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 12, 1997
REASONS FOR JUDGMENT BY: Robertson, J.A.
CONCURRED BY IN: Denault, J.A.
Décary, J.A.
APPEARANCES:
Donald Cherniawsky
Marvin Toy
Felesky Flynn for the Appellant
Kathleen Lyons
Department of Justice for the Respondent
SOLICITORS OF RECORD:
Felesky Flynn for the Appellant
Edmonton, Alberta
George Thomson
Deputy Attorney General of Canada for the Respondent
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