Keay v. Canada, 2009 FCA 170

Date: 20090527

Docket: A-455-08

Citation: 2009 FCA 170

CORAM:       NADON J.A.

                        PELLETIER J.A.                  

                        TRUDEL J.A.

BETWEEN:

DENNIS A. KEAY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Halifax, Nova Scotia, on May 26, 2009.

Judgment delivered at Halifax, Nova Scotia, on May 27, 2009.

REASONS FOR JUDGMENT BY:                                                                               TRUDEL J.A.

CONCURRED IN BY:                                                                                                  NADON J.A.

                                                                                                                                 PELLETIER J.A.

Date: 20090527

Docket: A-455-08

Citation: 2009 FCA 170

CORAM:       NADON J.A.

                        PELLETIER J.A.                  

                        TRUDEL J.A.

BETWEEN:

DENNIS A. KEAY

Appellant

and

HER MAJESTY THE QUEEN

Respondent

REASONS FOR JUDGMENT

TRUDEL J.A.

[1]               In computing his business income for his taxation year 2004, the appellant claimed a deduction for legal expenses incurred during the period between April 2002 and September 2004 in the context of divorce proceedings commenced by his then spouse. In 2007, the Minister reassessed the appellant for the 2003 and 2004 taxation years and disallowed the deduction.  The appellant appealed the Minister’s decisions to the Tax Court of Canada.

[2]               Webb J. (the judge) (Keay v. The Queen, 2008 TCC 481) dismissed the appeal of the Minister’s reassessments finding that the appellant had failed to establish that the legal expenses in question  were incurred primarily to earn income, as required by subsection 18(1) of the Income Tax Act, R.S.C. 1985, c. 1 (5^th Supp.). Hence, the present appeal.

[3]               On the basis of the record before us, I have not been persuaded that the judge made a palpable and overriding error justifying this Court’s intervention.  In light of the appellant’s testimony, documentary evidence and the arguments of the parties, it was open to the judge to conclude as he did.

[4]               Therefore, this appeal will be dismissed but, in the circumstances, without costs.

“Johanne Trudel”

“I agree.

            M. Nadon J.A.”

“I agree.

            J.D. Pelletier J.A.”

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-455-08

STYLE OF CAUSE:                                                              Dennis A. Keay v. Her Majesty the Queen

PLACE OF HEARING:                                                        Halifax, Nova Scotia

DATE OF HEARING:                                                          May 26, 2009

REASONS FOR JUDGMENT BY:                                     TRUDEL J.A.

CONCURRED IN BY:                                                         NADON J.A.

                                                                                                PELLETIER J.A.

DATED:                                                                                 May 27, 2009

APPEARANCES:

SOLICITORS OF RECORD: