Date:20001124
Docket:A-307-98
CORAM: STONE J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
DORA MACHTINGER
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Toronto, Ontario, on Friday, November 24, 2000.
Judgment rendered at Toronto, Ontario, on Friday, November 24, 2000.
REASONS FOR JUDGMENT OF THE COURT BY: STONE J.A.
Date: 20001124
Docket: A-307-98
CORAM: STONE J.A.
ROTHSTEIN J.A.
EVANS J.A.
BETWEEN:
DORA MACHTINGER
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Friday, November 24, 2000)
STONE J.A.
[1] The sole issue in this appeal from Mogan, J.T.C.C. is whether he erred in determining that no monetary consideration was given by the appellant to her husband at the time that he transferred to her his interest in the family home and, accordingly, that tax was properly assessed to the appellant pursuant to subsection 160(1) of the Income Tax Act (the "Act"). The transfer documentation was to the effect that consideration of $2.00 was exchanged for the property interest transferred.
[2] The Minister assessed the appellant in the amount of $39,304.25, which was equivalent to the amount of arrears of tax owing by her husband at the time of the transfer.
[3] It was found at trial that the husband's equity in the property transferred amounted to at least $42,000. The appellant maintains that she did give consideration for the transfer. She asserts that this consideration was represented by a written release and waiver of the right she would have had against him in the event of divorce of separation.
[4] We are not persuaded that the learned Tax Court Judge erred in deciding as he did. The task facing the appellant at the trial, as set forth in sub-paragraph 160(1)(e)(i) of the Act, was that of establishing "the amount, if any, by which the fair market value of the property at the time it was transferred exceeds the fair market value at that time of the consideration given for the property". [Emphasis added]
[5] It is clear to us from the record that the fair market value of alleged consideration at the time of transfer, if indeed it had any value, was not established at trial. This failure left to stand unanswered the respondent's pleaded assumption in paragraph 5(f) of the Reply that "at the time of transfer, the fair market value of the consideration given by the Appellant to her spouse, the Transferor, for the property did not exceed $2.00". Nor in our view does it assist the appellant that in Ontario case law referred to by counsel significant amounts of spousal support were allowed. The obligation on the appellant at the trial was to establish the fair market value of any consideration that she gave in exchange for the transfer. That she failed to do. We are not satisfied that the Tax Court Judge made any palpable and overriding error which affected his assessment of the facts.
[6] The appeal will be dismissed without costs.
"Arthur J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-307-98 |
| STYLE OF CAUSE: DORA MACHTINGER |
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
DATE OF HEARING: FRIDAY, NOVEMBER 24, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. |
Delivered at Toronto, Ontario on Friday, November 24, 2000
APPEARANCES: Mr. James C. Morton
For the Appellant
Ms. Eleanor Thorn
Ms. Livia Singer
For the Respondent
| SOLICITORS OF RECORD: STEINBERG MORTON FRYMER |
Barristers and Solicitors
5255 Yonge Street, Suite 810
North York, Ontario
M2N 6P4
| For the Appellant |
Morris Rosenberg
| Deputy Attorney General of Canada |
| For the Respondent |
FEDERAL COURT OF APPEAL
Date: 20001124
Docket: A-307-98
BETWEEN:
| DORA MACHTINGER |
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
| REASONS FOR JUDGMENT |
| OF THE COURT |