Date: 19980206
Docket: 97-21(IT)I
BETWEEN:
ALI SALAHI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_______________________________________________________________
For the Appellant: the Appellant himself
Counsel for the Respondent: Kevin Dias
_______________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Toronto, Ontario, on September 15, 1997)
Bowie, J.T.C.C.
[1] Mr. Salahi, it is not my problem
to reassess you nor is it my duty to reassess you. I am bound by
the decision of the Federal Court of Appeal in the Njenga[1] case
and in that case the trial judge found that the Appellant's
testimony was not credible. He characterized the receipts as a
sorry lot.
[2] I cannot say anything better about
what I have been presented with here. Indeed, I do not have
receipts at all for the great bulk of the expenses that you are
claiming.
[3] I cannot put a very high value on
your evidence either, because it seems to me very clear from your
evidence, in two respects, that it is not very reliable.
[4] The first of those is that it is
quite plain that you have been quite willing to advance a claim
for 210 days expenses of cab driving while putting forward the
income for l59 days of cab driving. Quite obviously that is not
right.
[5] In addition to that, you have told
me that you did not include any of the tips in your income and,
moreover, you told me you conducted your affairs on a cash basis
because that is the way things work in the business. I accept
that to some extent that is the way that things work in the
business, but it is certainly not entirely the way things have to
work in the business of driving a cab.
[6] But you told me that, at least in
part, the reason for paying cash for things is so that you do not
have to pay the goods and services tax and the provincial retail
sales tax of l5% of your expenses. When you tell me of all those
things, it is very hard for me to put a great deal of weight on
your evidence.
[7] So where does that leave me? It
leaves me looking at what the Federal Court of Appeal said in the
Njenga case. And I quote the bottom of the page:
The Income tax system is based on self monitoring. As a
public policy matter the burden of proof of deductions and claims
properly rests with the taxpayer. The Tax Court Judge held that
persons such as the Appellant must maintain and have available
detailed information and documentation in support of the claims
they make. We agree with that finding.
Now those words are binding on me. I do not have the option of
saying, "No, I do not agree with that". The Federal
Court of Appeal is above me in the judicial pecking order and
when they say that, I have to follow it.
[8] You do not have receipts. You have
what Mr. Justice McDonald refers to here as assertion without
proof. He talks of self-written receipts. Well, you have one
receipt for $l,000 which you told me quite candidly is dated
l992, although the amount was paid in l995 and was referable you
say to l992 and l993.
[9] Now when you come up with that
kind of evidence, it does not inspire confidence in the rest of
your evidence, I have to say.
[10] So given that I am bound by the Federal
Court of Appeal's judgment, the appeals are dismissed.
Signed at Ottawa, Canada, this 6th day of Febuary, 1998.
J.T.C.C.
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