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Date: 20060621

Docket: A-443-05

Citation: 2006 FCA 238

CORAM:        NOËL J.A.

                        NADON J.A.

                        SEXTON J.A.

BETWEEN:

WILLIAM P. KARDA

Appellant

and

HER MAJESTY THE QUEEN

Respondent

Heard at Toronto, Ontario, on June 21, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on June 21, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                  NADON J.A.


Date: 20060621

Docket: A-443-05

Citation: 2006 FCA 238

CORAM:        NOËL J.A.

                        NADON J.A.

                        SEXTON J.A.

BETWEEN:

WILLIAM P. KARDA

Appellant

and

HER MAJESTY THE QUEEN

Respondent

NADON J.A.

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on June 21, 2006)

[1]                This is an appeal from a judgment of Miller J. of the Tax Court of Canada, 2005 TCC 564, September 6, 2005, allowing in part the appellant's appeals from reassessments of tax made under the Income Tax Act, R.S.C. 1985, 5th Suppl., c. 1 (the Act), for his 1996, 1997 and 1998 taxation years.

[2]                The appellant makes two submissions in support of his appeal. With regard to the first one, we see no merit in his argument that the Notice of Reassessment of June 2, 2000, is invalid because the purpose thereof was to prevent the expiry of the three-year limitation. In our view, having requested additional information from the appellant and not having received that information, and having requested a waiver from the appellant which the appellant refused to give, the Minister was clearly entitled to issue a reassessment to protect his rights prior to the expiry of the three-year period. We therefore see no error on the Judge's part in finding that the reassessment was valid.

[3]                With respect to the appellant's second submission, which pertains to the denial of the interest expenses in the amounts of $15,480, $15,952 and $15,367 on the SoUse account, the Judge held that the appellant had failed to demonstrate which parts of the borrowed sums were used to earn income. The appellant argues that in so concluding, the Judge made an overriding and palpable error in ignoring evidence in the form of the SoUse Schedule of Outstanding Loans and in the form of a letter from Revenue Canada, dated February 1994, confirming that the loan had been used to earn income with respect to a prior year.

[4]                After consideration of the evidence and, in particular, of the appellant's oral testimony, we are satisfied that the Judge did not make an overriding and palpable error. In the end, what the appellant is asking us is to reassess the evidence in a light more favourable to his position. Failing a finding that the Judge made an overriding and palpable error, we simply cannot do what the appellant invites us to do.

[5]                As a result, there is no basis for us to intervene and the appeal will accordingly be dismissed with costs.

"M. Nadon"

J.A.


FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                    A-443-05

(APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE MILLER, TAX COURT OF CANADA, DATED SEPTEMBER 6, 2005)

STYLE OF CAUSE:                                                    WILLIAM P. KARDA v. HMQ

PLACE OF HEARING:                                              Toronto, ON

DATE OF HEARING:                                                June 21, 2006

REASONS FOR JUDGMENT

OF THE COURT BY:                                                 (NOËL, NADON, SEXTON JJ.A.)

DELIVERED FROM THE BENCH:                        NADON J.A.

APPEARANCES:

Richard Fitzsimmons

Leigh Somerville Taylor

For the Appellant

Margaret J. Nott

For the Respondent

SOLICITORS OF RECORD:

FITZSIMMONS & COMPANY

Barristers and Solicitors

Toronto, ON

For the Appellant

John H. Sims, Q.C.

Deputy Attorney General of Canada

For the Respondent

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Date Modified: 2014-08-29