Martindale v. The Queen, docket 96-1181-IT-I (Informal Procedure)

Date: 19980618

Docket: 96-1181-IT-I

BETWEEN:

DAVID MARTINDALE,

Appellant,

and

HER MAJESTY THE QUEEN,

Respondent.

Reasons for Order

Beaubier, J.T.C.C.

[1] Upon the Application of counsel for the Respondent filed in the Tax Court of Canada on October 20, 1997, and upon reviewing the file, including the Affidavit of Stephen Tsoi dated September 26, 1997:

[2] Reasons for Judgment and Judgment pursuant to the Informal Procedure were issued in this matter on August 15, 1997 after a contested hearing in Cranbrook, British Columbia on August 6, 1997. Thus, an application for judicial review to the Federal Court of Appeal had to be made within 30 days from August 15, 1997. No application for judicial review was made.

[3] The Judgment adopted the use of a schedule of capital cost allowance which was submitted by the Respondent's counsel during the hearing and upon which the Appellant was examined. The Judgment referred matters relating to the schedule of capital cost allowance to the Minister for reconsideration and reassessment.

[4] Upon computing the capital cost allowance pursuant to the Judgment, the Respondent found that the capital cost allowance allowable pursuant to the Judgment was $378 for 1992, whereas $863 had been allowed by the Minister. The Respondent now takes the position that the schedule submitted at the hearing was incorrect. Nonetheless both counsel for the Minister and the Appellant thought that it was correct when it was introduced into evidence and the Appellant reviewed it under oath.

[5] The Application was scheduled to be heard at the next sitting of the Court in Cranbrook, British Columbia on June 8, 1998. The Appellant did not appear. At the hearing counsel for the Minister proposed a different calculation of capital cost allowance than either of the previous figures, to arrive at a capital cost allowance of $601.64.

[6] There was no "slip" by the Court, since it made a proper determination based upon the evidence presented to it, in a contested hearing in which the Appellant testified. Nor was the evidence presented to the Court fraudulent. For these reasons, this Court was functus officio once the Judgment was rendered. Nonetheless, it is settled law that the Appellant is entitled to the capital cost allowance figure of $863 already allowed by the Minister.

[7] For these reasons the Application is dismissed.

Dated at Ottawa, Canada this 18th day of June 1998.

Beaubier

J.T.C.C.