Date: 20041102
Docket: A-61-04
Present: STONE J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
CHARLES S. SHAVER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on November 2, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on November 2, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20041102
Docket: A-61-04
Present: STONE J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
CHARLES S. SHAVER
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Ontario, on November 2, 2004)
[1] In this appeal from a judgment of the Tax Court of Canada dated January 6, 2004, two issues are raised in the appellant's written submissions.
[2] The first is whether Lamarre J. erred in determining that certain travel expenses incurred by the appellant in 1996 and 1997 in attending monthly business seminars in Canada and the United States, after becoming an independent business owner of Amway of Canada Ltd. in 1995, were not incurred "for the purpose of gaining or producing income" under paragraph 18(1)(a) of the Income Tax Act but, on the contrary, were "payments on account of capital" under paragraph 18(1)(b) of the Act and thus subject to the provisions of subsection 20(10) which limits the deductibility of such expenses to "not more than two conventions held during the year".
[3] The second issue is whether the learned Tax Court Judge erred in determining that special promotional expenses incurred by the appellant to attend a purely social event in Las Vegas, Nevada, in 1997 were not deductible under paragraph 18(1)(a) and that, even if such expenses were deductible under that paragraph, they were not deductible in the circumstances because they were excessive and, therefore, not "reasonable" under section 67 of the Act. As this second issue was abandoned by the appellant at the hearing of this appeal it requires no further attention.
[4] The factual background against which the first issue arose was carefully explored by Lamarre J. in her reasons for judgment, which are fully reported at 2004 TCC 10. It is not necessary, therefore, to delve into the facts in any detail here.
[5] The task facing Lamarre J. on that issue involved the determination of the facts and the application of relevant legal standards to the facts as so determined. Put another way, the Tax Court Judge had first to make findings of fact on the basis of the evidence with respect to the purpose underlying the incurring of the expenses and then to determine whether the expenses were deductible or not by applying the relevant legal standards set out in paragraphs 18(1)(a), 18(1)(b) and subsection 20(10) of the Act. It is apparent, therefore, that the determinations involved questions of mixed fact and law: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[6] In order to justify intervention, this Court would have to be satisfied that Lamarre J. made an error in principle. Apart from such an error, the determination of "a question of mixed fact and law . . . is subject to a standard of palpable and overriding error": Housen , supra, at paragraph 37. In our view, the appellant has failed to demonstrate that Lamarre J. either erred in principle or committed a palpable and overriding error in reaching her conclusion.
[7] In the result, therefore, the appeal will be dismissed with costs.
"A.J. Stone"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: CHARLES S. SHAVER v. HER MAJESTY THE QUEEN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 2, 2004
REASONS FOR JUDGMENT OF THE COURT (Stone, Sexton, Malone JJ.A.)
DELIVERED FOR THE BENCH BY: Stone J.A.
APPEARANCES:
| Mr. Emilio S. Binavince Mr. Michael Eng |
FOR THE APPELLANT
|
| Mr. Roger Leclaire Ms. Carole Benoit
|
FOR THE RESPONDENT
|
| Binavince & Associates Ottawa, Ontario |
FOR THE APPELLANT
|
| Mr. Morris Rosenberg Deputy Attorney General of Canada
|
FOR THE RESPONDENT
|