Date: 20070118
Dockets: A-432-05
A-433-05
Citation: 2007 FCA 47
CORAM: LÉTOURNEAU J.A.
EVANS J.A.
MALONE J.A.
BETWEEN:
A-432-05
HIKMAT ALSAYEGH
Appellant
and
HER MAJESTY THE QUEEN
Respondent
A-433-05
FIRIAL ALSAYEGH
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Vancouver, British
Columbia, on January 15, 2007.
Judgment delivered at Vancouver, British Columbia, on January
18, 2007.
REASONS FOR JUDGMENT BY:
LÉTOURNEAU J.A.
CONCURRED
IN BY:
EVANS J.A.
MALONE J.A.
Date: 20070118
Dockets: A-432-05
A-433-05
Citation: 2007 FCA 47
CORAM: LÉTOURNEAU
J.A.
EVANS
J.A.
MALONE
J.A.
BETWEEN:
A-432-05
HIKMAT ALSAYEGH
Appellant
and
HER MAJESTY THE QUEEN
Respondent
A-433-05
FIRIAL ALSAYEGH
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1]
The
appellants in files A-432-05 and A-433-05 appeal against a decision of McArthur
J. of the Tax Court of Canada (judge). By Order of Evans J.A., dated November
30, 2005, the two appeals have been consolidated and heard together. The appeal
in file A-432-05 (Hikmat) is considered the lead appeal. The appellants are
husband and wife. Hikmat represents himself and his wife in these appeals.
[2]
The
appellants have raised a number of complaints against the decision of the
judge. They also seek a variety of remedies from this Court. I shall address
the complaints first.
[3]
Of all the
grounds of appeal raised by the appellants, only two deserve to be addressed in
my respectful view.
[4]
The
appellants submit that the judge erred in concluding that the appellant Hikmat
was the sole owner of a property located on Rumble Street. They contend that they held all their
properties jointly and that this was also their intention with respect to the Rumble Street property.
[5]
In my
view, the appellants’ contention results from their misunderstanding of the law
applicable to this issue. There was ample and cogent evidence before the judge
to support his conclusion. The legal title to the property was registered in
Hikmat’s name. The financial dealings regarding that property also indicated
that Hikmat was the sole owner. So did the interim purchase agreement signed
with the seller’s broker, Re/Max.
[6]
In
addition, in his 1991, 1992 and 1993 income tax returns, the appellant Hikmat
declared that he was the sole owner of the Rumble Street property. Consequently, he claimed all
the losses while his wife claimed none. He also agreed to assume the mortgage
financing personally.
[7]
Finally,
in her original Notice of Appeal filed in the Tax Court of Canada, the wife of
the appellant Hikmat stated that all the properties were owned by both of them
on a 50/50 basis, except the property on Rumble Street. On the basis of that evidence, I cannot
say that the judge’s conclusion was unreasonable.
[8]
The
appellants contest the interest, penalties and costs imposed upon them. I see
no reason to interfere with the judge’s finding.
[9]
First, the
interest and penalties were assessed under sections 161 and 162 of the Income
Tax Act for the appellants’ late filing of their income tax returns. Once
again the evidence supported his conclusion as well as the finding that the
appellants had not met the threshold for a due diligence defence.
[10]
As for the
allocation of costs before the Tax Court, which involves an exercise of
discretion, the judge awarded them to the respondent in view of the limited
success that the appellants had with their appeals. However, to the benefit of
the appellants, he limited them to one set because there was a joint hearing of
the two appeals. I cannot say that his decision reveals an improper exercise of
discretion.
[11]
Most of
the remedies sought from this Court by the appellants are either beyond our
jurisdiction or not properly within the scope of the appeals. However, there is
one minor correction that the appellants want this Court to make to the
adjusted cost base of a property located at 5318 Bruce Street. The respondent concedes that
the amount of the adjusted cost base of that property should be $163,037
instead of the $158,975 determined by the judge.
[12]
For these
reasons, I would dismiss the appeal in file A-433-05. I would also dismiss the
appeal in file A-432-05, except that the reassessment ordered by the judge in
the third paragraph of his judgment, dated August 19, 2005, in file 2000-4265
(IT) G should be “on the basis that the adjusted cost base for 5318 Bruce Street property is increased to
$163,037.
[13]
I would
award the respondent one set of costs, plus disbursements in each file.
“Gilles
Létourneau”
“I
agree.
John
M. Evans J.A.”
“I
agree
B.
Malone J.A.”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-432-05
and A-433-05
STYLE OF CAUSE: HIKMAT
ALSAYEGH and FIRIAL
ALSAYEGH v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: January 15, 2007
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: EVANS J.A.
MALONE
J.A.
DATED: January 18, 2007
APPEARANCES:
|
Hikmat Alsayegh
|
FOR THE
APPELLANTS
|
|
Bruce
Senkpiel
|
FOR THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
|
|
|
John H. Sims,
Q.C.
Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|
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