Date: 20010615
Docket: A-270-99
Neutral citation: 2001 FCA 202
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
BRIAN KEITH JENKINS
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, Friday, June 15, 2001
Judgment delivered from the Bench at Toronto,
Ontario, on Friday, June 15, 2001
REASONS FOR JUDGMENT OF THE COURT BY: SHARLOW J.A.
Date: 20010615
Docket: A-270-99
Neutral citation: 2001 FCA 202
CORAM: DESJARDINS J.A.
ROTHSTEIN J.A.
SHARLOW J.A.
BETWEEN:
BRIAN KEITH JENKINS
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Friday, June 15, 2001)
SHARLOW J.A.
When the applicant Brian Keith Jenkins filed his 1995 income tax return, he claimed a deduction for alimony or maintenance in the amount of $20,525.44, later amended to $20,235.25. The deduction was disallowed, but a later reassessment allowed a deduction of $6,500. After a notice of objection, an additional $6,411 deduction was allowed. On appeal to the Tax Court, a further $1,100 deduction was allowed: [1999] T.C.J. No. 742. Mr. Jenkins seeks judicial review of the decision of the Tax Court to claim a deduction for an additional $3,238.80.
Mr. Jenkins claimed at trial that the $3,238.80 represents arrears of maintenance that, pursuant to a 1995 court order, were paid out of funds held in a lawyers' trust account. The Tax Court Judge held that payments made out of that trust account to Mr. Jenkins' former spouse pursuant to the court order would be deductible in the year of payment, not in the year the order was made. We are all of the view that his decision on that point is correct. The making of the order by itself did not constitute payment or constructive payment to Mr. Jenkins' former spouse. Further, section 76 of the Income Tax Act, which deals with securities issued in satisfaction of an income debt, does not apply in these circumstances.
It follows that Mr. Jenkins cannot establish his entitlement to the deduction claimed unless there is evidence that the payments in that amount were made in 1995 from the trust account. As no such evidence was presented at trial, the Tax Court Judge correctly held that Mr. Jenkins' claim for a deduction of $3,238.80 could not be allowed.
Mr. Jenkins sought to adduce additional evidence in this Court. We are all of the view that the additional evidence cannot be accepted. We see no reason why that evidence could not, with due diligence, have been presented at trial. In any event, the additional evidence would not prove when the maintenance was paid.
For these reasons, this application for judicial review will be dismissed with costs.
"Karen R. Sharlow"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-270-99
STYLE OF CAUSE: BRIAN KEITH JENKINS
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: FRIDAY, JUNE 15, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SHARLOW J.A.
DELIVERED FROM THE BENCH AT TORONTO, ONTARIO ON FRIDAY, JUNE 15, 2001.
APPEARANCES BY: Mr. Brian K. Jenkins
For the Applicant, on his own behalf
Ms. Lesley S. King
Mr. David W. Chodikoff
For the Respondent
SOLICITORS OF RECORD: Brian K. Jenkins
1027 Raintree Lane
Mississauga, Ontario
L5H 4A1
For the Applicant, on his own behalf
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF APPEAL
Date: 20010615
Docket: A-270-99
BETWEEN:
BRIAN KEITH JENKINS
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
OF THE COURT
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