Date: 20051108
Docket: A-308-04
Citation: 2005 FCA 372
CORAM: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
BETWEEN:
ALAN W. COCKERAM and E. ANNE COCKERAM,
Trustee of the Cockeram Family Trust
Appellants
and
HER MAJESTY THE QUEEN
Respondent
Heard at Fredericton, New Brunswick, on November 8, 2005.
Judgment delivered at Fredericton, New Brunswick, on November 8, 2005.
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J.
Date: 20051108
Docket: A-308-04
Citation: 2005 FCA 372
CORAM: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
BETWEEN:
ALAN W. COCKERAM and E. ANNE COCKERAM,
Trustee of the Cockeram Family Trust
Appellants
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Fredericton, New Brunswick, on November 8, 2005)
RICHARD C.J.
[1] This in an appeal from a judgment of Madam Justice Diane Campbell of the Tax Court of Canada (2004TCC307) in which she dismissed the appellants' appeal.
[2] The issue was whether the Cockeram Family Trust was entitled to deduct $49,200 in computing its income in the 1996 taxation year pursuant to subsection 104(6) of the Income Tax Act.
[3] This involved the determination of whether a cottage property purchased in 1995 was an asset of the Trust or a personal asset of Alan W. and E. Anne Cockeram.
[4] The Tax Court judge determined that the Appellants had the burden of establishing that the property is an asset of the trust and that the trust was entitled to deduct the payment of $49,200 in 1996 from its income pursuant to the relevant sections.
[5] The Tax Court judge concluded that although she had no reason not to believe Dr. Cockeram's evidence concerning his intent that mere statement of intent alone was not sufficient to correct the entire array of documents which clearly pointed to the cottage ownership, both legal and beneficial, residing personally with the Cockerams.
[6] In addition to the documentation, the Tax Court judge found that the conduct of the Cockerams, both prior and subsequent to the purchase of the property, clearly pointed to the Cockerams treating it as if they owned it personally.
[7] Accordingly, on the facts of this case the Tax Court judge concluded that the appellants had not succeeded in overcoming the onus that the Minister's assumptions were wrong and consequently that the assessment was wrong.
[8] In reaching this conclusion the Tax Court judge did not make a palpable or overriding error and accordingly the appeal will be dismissed with costs.
"J. Richard"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-308-04
STYLE OF CAUSE: Alan W. Cockeram and E. Anne Cockeram, Trustee of the Cockeram Family Trust and Her Majesty the Queen
PLACE OF HEARING: Fredericton, New Brunswick
DATE OF HEARING: November 8, 2005
REASONS FOR JUDGMENT OF THE COURT: RICHARD C.J.
DÉCARY J.A.
NADON J.A.
DELIVERED FROM THE BENCH BY: RICHARD C.J.
APPEARANCES:
| Nicole L. Gallant
|
FOR THE APPELLANTS
|
| Cecil Woon
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
| Patterson Palmer
Saint John, New Brunswick
|
FOR THE APPELLANTS
|
| John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario
|
FOR THE RESPONDENT
|
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