Robertson J.A.:
This appeal arises from the failure of the Tax Court Judge to award costs against the respondent with respect to two income tax appeals pertaining to the respondent’s 1991 and 1992 taxation years, respectively. The issue is whether the judge below erred in the exercise of his discretion in failing to award costs against the respondent. The appellant takes the position that the Tax Court Judge erred by failing to give sufficient weight to the written settlement offer made by the Crown, and that it should be awarded costs after the date of that offer at twice the Tariff amount plus two senior counsel fees for the conduct of the hearing.
In my respectful view, the appeal must be dismissed. I can find no error on the part of the Tax Court Judge in the exercise of his discretion. The fact that the settlement offer was faxed to counsel for the respondent at his hotel the day before the trial commenced obviously influenced the Tax Court Judge. That being said, I note that the appellant also cross-appealed the Tax Court rulings for both the 1991 (A-426-97) and 1992 (A-427-97) taxation years. By agreement, the appeal in A-426-97 is being dismissed without costs. As the appellant was fully successful on its cross-appeal in A-427-97, it has been awarded costs in both the Tax Court and this Court.
I would dismiss this appeal without costs.
Appeal dismissed.
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