Saikali v. R., [1998] 3 CTC 200, 98 DTC 6351

Linden J.A.:

We have not been persuaded that the Tax Court Judge made any reversible error.

Issue estoppel is not available to assist the appellant because the Tax Court Judge relied only on the “gross negligence” language of section 163(2) of the Income Tax Act and did not rely at all on the “knowingly” language which, if used, may arguably have had some significance in the light of the Provincial Court decision (see Van Rooy v. Minister of National Revenue (1988), 88 D.T.C. 6323 (Fed. C.A.)).

In our view, the Tax Court Judge used the correct legal test and there was sufficient evidence to support the finding of gross negligence based on the “indifference” of the appellant.

Further, the Tax Court Judge correctly found that the receipt was on the appellant’s own account as being an “adventure in the nature of trade” and that the corporate machinations did not alter this, some of the evidence being described as “feeble” and some of the arguments being called “fanciful” by the Tax Court Judge.

As for the alleged $50,000 interest error in 1989, the decision turned mainly on the matter of the appellant’s credibility, and we have not been convinced that there is any need to interfere with that finding of the Tax Court Judge.

There is nothing in Farm Business Consultants Inc. v. R. (1996), 96 D.T.C. 6085 (Fed. C.A.) or in Venne v. R., [1984] C.T.C. 223 (Fed. T.D.) per Strayer J. that is inconsistent with our decision or with the Tax Court Judge’s decision in this case.

The appeal should be dismissed with costs.

Appeal dismissed.