Date: 20021211
Dockets: A-609-00
A-610-00
Neutral citation: 2002 FCA 493
CORAM: STONE J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
CHUNG J. HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
AND:
HUN HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Toronto, Ontario, on Wednesday, December 11th, 2002.
Judgment delivered from the Bench at Toronto, Ontario,
on Wednesday, December 11th, 2002.
REASONS FOR JUDGMENTS OF THE COURT BY: SHARLOW, J.A.
Date: 20021211
Dockets: A-609-00
A-610-00
Neutral citation: 2002 FCA 493
CORAM: STONE J.A.
SHARLOW J.A.
MALONE J.A.
BETWEEN:
CHUNG J. HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
AND:
HUN HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENTS OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Wednesday, December 11th, 2002.)
SHARLOW, J.A.
[1] The applicants have been reassessed for 1991, 1992 and 1993 under the Income Tax Act, R.S.C. 1985, c. 1 (5th supp.). They appealed the reassessments to the Tax Court of Canada. Their appeals were heard together under the informal procedure, and dismissed on August 23, 2000. The reasons for judgment are reported as Huh v. Canada, [2000] 4 C.T.C. 2239, 2000 D.T.C. 2422 (T.C.C.). The applicants have applied for judicial review of those decisions.
[2] It is argued for the applicants that the Tax Court Judge erred in concluding that, in the 1991, 1992 and 1993 taxation years, they were resident in Canada for purposes of the Income Tax Act, and were not residents of the United States for purposes of Article IV of the Convention between Canada and the United States of America with respect to Taxes on Income and on Capital, enacted pursuant to the Canada-United States Tax Convention Act, 1984, S.C. 1984, c. 20, Schedule I.
[3] Whether a person is resident in Canada is a question of fact: [1946] S.C.R. 209">Thomson v. Minister of National Revenue, [1946] S.C.R. 209, [1946] C.T.C. 51, 2 D.T.C. 812. The factors to be taken into account have been stated in many cases and need not be repeated here. It is sufficient to say that the Tax Court Judge clearly was aware of the relevant factors.
[4] All of the arguments of counsel for the applicants are attacks on the findings of fact by the Tax Court Judge. Counsel submitted most forcefully that the Tax Court Judge based his decision on an erroneous finding of fact that he made in a perverse or capricious manner, or without regard to the evidence (referring to paragraph 18.1(4)(d) of the Federal Court Act, which deals with applications for judicial review). His position fundamentally is that the Tax Court Judge misdirected himself by rejecting any testimony of the applicant Mr. Huh that was not corroborated by documentation that could have easily been obtained.
[5] The assessment of the credibility of Mr. Huh was a matter for the Tax Court Judge alone. We can find no error in the manner in which the Tax Court Judge undertook that task. Although the Tax Court Judge did not explain why he considered Mr. Huh's oral evidence to be unreliable, the record establishes that the applicants had filed Canadian income tax returns claiming to be resident in Canada, but after being reassessed they claimed not to be resident in Canada. The applicants produced no evidence that they had filed tax returns in the United States or that they had been subject to tax in the United States on the basis of residence there. Indeed, the applicants submitted little documentary evidence to establish the facts upon which they based their appeals. In our view, the record provides ample support for the Tax Court Judge's unwillingness to accept Mr. Huh's uncorroborated oral evidence.
[6] For these reasons, these applications for judicial review will be dismissed with one set of costs.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF CANADA
APPEAL DIVISION
Names of Counsel and Solicitors of Record
DOCKETS: A-609-00
A-610-00
STYLE OF CAUSE: CHUNG J. HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
AND:
HUN HUH
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: WEDNESDAY, DECEMBER 11, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENTS
OF THE COURT BY: SHARLOW, J.A.
DATED: WEDNESDAY, DECEMBER 11, 2002
JUDGMENT DELIVERED FROM THE BENCH ON MONDAY, DECEMBER 11, 2002.
APPEARANCES BY: Mr. Douglas D. Langley
For the Applicant
Ms. Marie-Therese Boris
Ms. Jenna Clark
For the Respondent
Page: 2
SOLICITORS OF RECORD: Mr. Douglas D. Langley
Barristers & Solicitors
60 Columbia Way, Suite 710
Markham, Ontario
L3R 0C9
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
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