Citation: 2010 FCA 18
CORAM: NADON J.A.
MAJESTY THE QUEEN
Heard at Toronto,
Ontario, on January 19,
Judgment delivered from the Bench at Toronto, Ontario, on January 19, 2010.
REASONS FOR JUDGMENT OF THE COURT BY: NADON
2010 FCA 18
REASONS FOR JUDGMENT OF THE
from the Bench at Toronto, Ontario, on January 19, 2010)
is an appeal from a decision of Madam Justice Wood of the Tax Court of Canada,
dated March 12, 2009, 2009 TCC 146, which dismissed the appellant’s appeal from
the Minister of Revenue’s (the “Minister”) reassessments of his 2004, 2005,
2006 and 2007 taxation years.
the years at issue, the appellant received distributions of income from foreign
investment corporations. In filing his income tax returns for the years at
issue, the appellant took the position that a certain portion of the amounts
received by him was of a capital nature and thus taxable as capital gain. The
amounts received by the appellant were amounts earned by the foreign
corporations and paid to him on a pro rata basis per unit or share
owned. None of the amounts received by the appellant resulted from the disposal
of shares or units in these corporations.
Minister reassessed the appellant and included in his taxable income the full
amount of the distributions as dividends and other investments. In reassessing
the appellant, the Minister relied, inter alia, on section 90 and
paragraph 12(1)(k) of the Income Tax Act, R.S.C. 1985, c. 1.
Judge dismissed the appellant’s appeal because she was of the view that the
Minister was correct in treating the foreign distributions of income to the
appellant as dividends. In her view, there was no basis upon which the
distributions could be treated as capital gains for tax purposes.
so concluding, the Judge indicated that she could not accept the appellant’s
submission that the foreign entities from which the appellant received the
distributions were not corporations and that flow-through treatment should
apply to capital gains realized because the funds acted in an agency capacity.
In her view, there was no evidence to support the appellant’s assertions.
are satisfied, in the light of the evidence and the applicable law, that the
Judge made no error which would justify intervention on our part.
appeal will therefore be dismissed with costs.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
(APPEAL FROM A JUDGMENT OR ORDER OF
MADAM JUSTICE WOODS, OF THE TAX COURT OF CANADA, DATED MARCH 12, 2009, DOCKET NO. 2008-2830 (IT) I)
STYLE OF CAUSE: DONALD
IAN MOYES v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: JANUARY 19, 2010
REASONS FOR JUDGMENT
OF THE COURT BY: (NADON,
EVANS & STRATAS JJ.A.)
DELIVERED FROM THE BENCH BY: NADON J.A.
Donald Ian Moyes
FOR THE APPELLANT
FOR THE RESPONDENT
SOLICITORS OF RECORD:
John H. Sims,
Deputy Attorney General of Canada