Date: 20130116
Dockets: A-53-12
A-54-12
A-58-12
Citation: 2013 FCA 11
CORAM: NOËL
J.A.
PELLETIER
J.A.
MAINVILLE
J.A.
Docket: A-53-12
BETWEEN:
JOSÉ DIAZ
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Docket: A-54-12
BETWEEN:
CESAREO LOPEZ
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Docket: A-58-12
BETWEEN:
FRED WAGNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Montréal, Quebec, on January 16,
2013.
Judgment delivered from the bench at Montréal, Quebec, on January 16, 2013.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL
J.A.
Date: 20130116
Dockets: A-53-12
A-54-12
A-58-12
Citation: 2013 FCA 11
CORAM: NOËL
J.A.
PELLETIER
J.A.
MAINVILLE
J.A.
Docket: A-53-12
BETWEEN:
JOSÉ DIAZ
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Docket: A-54-12
BETWEEN:
CESAREO LOPEZ
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Docket: A-58-12
BETWEEN:
FRED WAGNER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Montréal, Quebec, on January 16, 2013)
NOËL J.A.
[1]
These are three
appeals from a decision by Justice Favreau of the Tax Court of Canada (the
TCC judge). Justice Favreau confirmed the assessments issued against the three
appellants on the ground that the proceeds received by the appellants from a
disposition of shares amounted to $13,750,000 rather than $9,072,000 as
indicated in the contract of sale. In doing so, the TCC judge chose not to accept
the price agreed upon between the parties on the ground that, according to his
finding of fact, the parties were not dealing at arm’s length at the relevant
time. He also refused to give effect to an adjustment of the sale price, citing
mainly the absence of evidence as to the reason for the payment.
[2]
The three appeals
were consolidated by an order of Justice Mainville dated March 20, 2012. Pursuant
to that order, the reasons that follow dispose of all three appeals. To that end,
the original will be filed in the lead file (A-53-12), and a copy thereof will
be filed in the related files (A-54-12 and A-58-12) to serve as reasons therein.
[3]
This is a case in
which the two issues could have been elucidated through the testimony of the
purchaser. In these circumstances, the TCC judge rightly drew a negative
inference from the fact that the purchaser did not testify.
[4]
Indeed, the
circumstances surrounding the sale of the shares are such that there is reason
to conclude that the purchaser’s testimony would not have supported the
appellants’ position on either of the issues. In our opinion, the TCC judge was
right in concluding as he did.
[5]
The appeals are
therefore dismissed with one set of costs in the lead case.
“Marc Noël”
Certified true translation
Erich Klein
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKETS: A-53-12, A-54-12, A-58-12
(APPEAL FROM
JUDGMENTS OF JUSTICE FAVREAU OF THE TAX COURT OF CANADA DATED JANUARY 18,
2012, DOCKETS 2009-1107(IT)G, 2009-1109(IT)G, 2009-1110(IT)G)
STYLES OF CAUSE: José
Diaz v. The Queen
Cesareo
Lopez v. The Queen
Fred
Wagner v. The Queen
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: January
16, 2013
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
PELLETIER
J.A.
MAINVILLE
J.A.
DELIVERED FROM THE BENCH BY: NOËL J.A.
APPEARANCES:
|
Daniel
Bourgeois
|
FOR THE
APPELLANTS
|
|
Sophie-Lyne
Lefebvre
Vlad Zolia
|
FOR THE
RESPONDENT
|
SOLICITORS
OF RECORD:
|
De Grandpré,
Chait
Montréal,
Quebec
|
FOR THE
APPELLANTS
|
|
William F.
Pentney
Deputy
Attorney General of Canada
|
FOR THE
RESPONDENT
|
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