BETWEEN:
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on June19, 2006.
Judgment delivered from the Bench at Toronto, Ontario, on June 19, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: NOËL J.A.
Docket: A-436-05
Citation: 2006 FCA 230
CORAM: NOËL J.A.
NADON J.A.
SEXTON J.A.
BETWEEN:
SUKHDEV SINGH
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on June 19, 2006)
[1] This is an appeal from a judgment of Woods J. of the Tax Court of Canada (2005 TCC 588) dismissing Mr. Singh's appeal from the reassessment made under the Income Tax Act, R.S.C. 1985 (5th Supp.) c. 1 (the "Act") with respect to his 1995 taxation year.
[2] The appellant raises three arguments in support of his appeal. The first relates to the main issue: whether an alleged business investment loss can properly be claimed by the appellant in respect of moneys advanced to a qualifying corporation in the form of loans or share purchases. The appellant contends that the Tax Court Judge committed an overriding, and palpable error in denying this loss.
[3] The Tax Court Judge noted that there was a lack of documentation identifying the flow of funds from the appellant's personal account to the corporate account. The Tax Court Judge also noted the introduction of conflicting evidence as to how the loss was incurred. She went on to hold that the appellant had failed to establish that the loss had in fact been incurred. This is a conclusion that was open to her based on the evidence.
[4] The appellant also argued that the case before the Tax Court Judge was heard more than six years after the original assessment was issued, that is outside the six-year period within which tax debts can be collected (The Queen v. Markevich, [2003] 2 C.T.C. 83). As was explained by the Tax Court Judge, this case does not pertain to debt collection. Rather, it deals with the validity of the outstanding reassessment. As such, the limitation periods provided under the Act apply. In this case, the applicable limitation period does not run as a waiver has been filed by the appellant.
[5] In this connection, the appellant raised a third argument. He did not dispute that a waiver was given by him on August 20, 1999. However, he argued that the original assessment was made earlier than on September 10, 1996, the date which appears on the reconstructed notice of assessment. The appellant testified that he received this assessment about one month earlier with the result that the 1995 taxation year would have been statute barred on August 20, 1999, when the waiver was given.
[6] The Tax Court Judge held that the appellant's testimony was not sufficiently reliable to establish that the assessment was made before the date which appeared on the reconstructed notice. This is a conclusion that was open to her given the date on which the 1995 tax return was filed, the recorded date of the assessment for that year and the limited credibility which was attributed to the appellant's overall testimony.
[7] The appeal will be dismissed with costs.
"Marc Noël"
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-436-05
(APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE J. WOODS, TAX COURT OF CANADA, DATED AUGUST 31, 2005)
STYLE OF CAUSE: SUKHDEV SINGH v. HER MAJESTY THE QUEEN
DATE OF HEARING: June 19, 2006
REASONS FOR JUDGMENT
OF THE COURT BY: (NOËL, NADON & SEXTON JJ.A.)
DELIVERED FROM THE BENCH: NOËL J.A.
APPEARANCES:
|
|
For the Appellant |
|
Arnold H. Bornstein Eric Sherbert
|
For the Respondent |
SOLICITORS OF RECORD:
|
Brampton, ON
|
For the Appellant
|
|
Deputy Attorney General of Canada
|
For the Respondent |