Date: 20010827
Docket: 1999-2483-IT-G
BETWEEN:
ANTE ROGIC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
AND BETWEEN:
1999-2484(IT)G
MARIA ROGIC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Reasons for Judgment
Bell, J.T.C.C.
ISSUES:
[1] The Appellants made a motion for the determination of questions of law pursuant to section 58(1)(a) of the Tax Court of Canada Rules (General Procedure) ("Rule 58(1)(a)"), such questions having been raised by the pleadings, namely:
A 1. Does the doctrine of Issue Estoppel, abuse of process, or election in litigation prevent the Respondent from alleging as a fact that the Appellants had a beneficial interest in property at 1530 West 59th Avenue, Vancouver, British Columbia ("Property")?
2. If the answer to question number 1 is in the affirmative, is the Respondent precluded from pleading, after the expiry of the normal reassessment period, that although the Appellants had no beneficial interest in the Property, the Appellants received a benefit in respect of the personal use of the Property pursuant to subsection 15(1) of the Income Tax Act ("Act").
B If the answer to questions 1 and 2 is in the affirmative, an Order allowing the appeal with costs.
C If the answer to question 1 is in the affirmative and the answer to question 2 is in the negative, an Order that the trial proceed with a finding of fact that the Appellants had no beneficial interest in the Property.
TAX COURT OF CANADA RULES (GENERAL PROCEDURE):
[2] Section 58(1) of the Rules provides, in part, that:
(1) A party may apply to the Court,
a) for the determination, before hearing, of a question of law raised by a pleading in a proceeding where the determination of the question may dispose of all or part of the proceeding, substantially shorten the hearing or result in a substantial saving of costs ...
FACTS:
[3] The Appellants, during 1994, the taxation year in question, resided in British Columbia. They owned a company known as AMI Construction Ltd. ("Company") which carried on the business of constructing residential homes for sale. It constructed a house on the Property, the Property being sold in October, 1994 for $1,041,000.
[4] On August 15, 1995, the Company was assessed for goods and services tax ("GST"), in the amount of $65,420, under subsection 191(1) of the Excise Tax Act ("ETA") in respect of the Property. It was so assessed on the basis of being a builder respecting the Property. It gave possession of the Property to the Appellants by way of lease, license or similar arrangement for the purpose of its occupancy as a place of residence.
[5] On December 9, 1996, the Appellants were assessed GST in the sum of $72,870[1].
[6] Both the Company and the Appellants appealed the assessments and both appeals were scheduled to be heard on the same day.
[7] Prior to that date, counsel for the parties in both assessments executed a letter agreement settlement providing, inter alia, that:
1. The assessment against Rogic, Ante and Maria will be vacated.
2. AMI Construction Ltd. will be reassessed on the following basis:
a) the amount assessed with respect to the self supply of the subject property be reduced to $42,000, with no penalty or pre-assessment interest to be levied on this amount;
[8] There followed a judgment issued by this Court dated February 11, 1997 allowing the appeal of Ante and Maria Rogic and a judgment of the same date respecting the Company, stating, in part, that:
1. the Appellant is liable for GST in the amount of $42,000 with respect to the self-supply of the property located at 1524 - West 59th Street, Vancouver, B.C.;
[9] By Notice of Assessment dated April 2, 1998, the Respondent assessed the Appellants income tax in the amount of $92,491 each, in respect of an alleged income gain on the sale of the property. It is this assessment in respect of which the Appellants' motion respecting issue estoppel, et cetera, is made.
[10] The Respondent, in the Amended Reply[2] respecting Maria Rogic[3], stated that:
In so reassessing the Appellant, the Minister relied on, inter alia, the following assumptions:
...
(e) at all material times, the Appellant and her husband equally owned the beneficial interest in the Property.
[11] The Amended Reply also included an alternative submission, namely:
15. In the further alternative, he submits, that if the Appellant did not beneficially own the Property, which fact is specifically denied, the Appellant failed to include in her income a benefit in respect of the personal use of the Property by the Appellant and her spouse, and therefore, a benefit in respect of such use must be included in the Appellant's income pursuant to subsection 15(1) of the Act.
APPELLANTS' SUBMISSIONS:
[12] Appellants' counsel submitted that the doctrine of res judicata prevents re-litigation of a factual matter which was put in issue in previous court proceedings. He submitted that when a party attempts to have issues fundamental to an earlier judgment re-tried, res judicata applies and the party will be estopped from so doing. He said that the relevant branches of the doctrine for the purpose of his motion were issue estoppel, abuse of process and election in litigation. He argued that the aforesaid judgments issued by this Court were consistent with a finding of fact that the beneficial owner of the Property was the Company, not the Appellants, and that the Respondent is, accordingly, estopped from raising the very same question relating to the beneficial ownership of the Property. He submitted, in the alternative, that the equitable doctrine of abuse of process would apply to prevent re-litigation of that question of ownership. He further submitted that the Respondent, having elected to take a position in the previous GST appeals that was fundamentally based on the Company being the sole beneficial owner of the Property, the doctrine of election in litigation applies and it is not now open to the Respondent to take a contrary position in respect of the current income tax reassessment appeals.
[13] Counsel referred to MacIntosh v. Parent, 1924, 55 O.L.R. 552 (CA) at 555 where Middleton, J.A. said:
When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question or fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains.
[14] Counsel further submitted that Dickson, J. (as he then was) in Angle v. M.N.R., [1975] 2 S.C.R. 248 at 254, set out the following conditions required in order to succeed in an issue estoppel application, namely:
... (1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.
[15] Counsel submitted that the question out of which the estoppel is said to arise must have been fundamental to the decision made in the earlier proceedings and, if it is, a litigant can use issue estoppel to prevent the same question from being raised in subsequent proceedings.[4]
[16] Counsel then quoted the Alberta Court of Appeal in R. v. Duhamel (1982) 33 A.R. 271 at 277 as follows:
The issues sought to be estopped in a subsequent proceeding must have been clearly and unequivocably decided by the first court. Essentially one must apply reasoning or logic. It is not necessary to show that the issue is specifically decided so long as it can be shown that it was a necessary logical consequence of the point actually decided. It is pure logic, not probability, likelihood or speculation.
(emphasis added by Appellants' counsel)
[17] He further referred to Iron v. Saskatchewan [1993] 6 W.W.R. I (Sask. C.A.), leave to appeal to the Supreme Court of Canada refused, (1993) 7 W.W.R. 1 at page 11 as follows:
It is clear from the authorities that for the doctrine to apply it is not necessary that the matter said to be res judicata in a subsequent case be the main point or ratio in the first case. It is necessary only that it be an "essential" point or "fundamental to the decision" (See: Fidelitas Shipping Co. v. V/O Exportchleb, [1965] 2 All ER 4 (CA), Winter v. Dewar, [1929] 4 DLR 389), [[1929] 2 W.W.R. 518] (B.C.C.A.); and (particularly in respect of an earlier chambers' decision ) Mire v. Northwestern Mut. Ins. Co., supra.) In the present case, because the question whether the order sought to be appealed was final or interlocutory went to the very jurisdiction of the Chambers judge to hear and decide the application and because it was squarely raised by the parties, the question necessarily became an "essential" point or a point "fundamental to [the judge's] decision".
[18] Further, in Pezzelato v. The Queen, 96 DTC 1285 this Court held that where a Consent to Judgment is premised on an assumption of fact, issue estoppel will apply to prevent one part from later claiming a different fact. The taxpayer was precluded from alleging as a fact that he had not paid interest on a loan by a certain date because, in an earlier appeal, the taxpayer had consented to judgment on the basis that he had in fact paid interest by that date.
[19] Respecting the matter of final decision, counsel submitted that it was settled law that issue estoppel can apply to a judgment issued on consent.[5]
[20] Respecting the same parties requirement in both proceedings he submitted that both the Appellants and the Respondent were parties in the prior proceedings which was settled by a single agreement having as a fundamental basis the fact that the Company, not the Appellants, was the beneficial owner of the Property.
[21] Finally, in the matter of abuse of process and election in litigation, counsel submitted, with a number of authorities, that because issue estoppel is grounded in considerations of equity, the courts are always prepared to apply the doctrine flexibly with a view to reaching a fair result even where the three technical requirements for the application of issue estoppel have not been met. In particular, he cited Stephenson v. Bowmac Construction [1986] 5 W.W.R. 21 at 26 where the Saskatchewan Court of Appeal, said:
There is however concern based on public policy that the same issue should not be relitigated so that the parties should not be exposed to the same risk twice and also that there be an end to the litigation process. The Courts have not only viewed such matters under the established doctrines of "res judicata" and "issue estoppel", but also under the broader heading of the concept of abuse of process. Lord Diplock in the case of Hunter v. Chief Constable of West Midlands and another, [1981] 3 All ER 727 at p. 733 made it clear that he felt entitled to rely on the fact that proceedings constituted an abuse of process even thought the doctrine of issue estoppel did not clearly apply.
[22] Respecting the doctrine of election in litigation, together with issue estoppel, the Saskatchewan Court of Appeal said:
I have grave doubt that an applicant is entitled in law to maintain the second of these two positions - a position that it entirely at odds with the essence of its own application. A species of estoppel as expressed in the principle that a person may not approbate and reprobate, or that one may not at the same time blow hot and cold, comes into play and debars an applicant from doing so. Should the applicant decide to assert these two inconsistent positions, the judge during the course of the proceedings ought to put the applicant to an election. Having made an election the applicant is not entitled to resile from the position he elects.
[23] Counsel turned to the Respondent's pleading that if the Appellants did not beneficially own the Property, they failed to include in their income a benefit in respect of personal use of the Property and that, therefore, a benefit in respect of such use must be included in their income pursuant to subsection 15(1) of the Act.
[24] He said that the allegation that the Company was the beneficial owner and conferred such benefit was not one of the assumptions underlying the reassessment. He submitted that the attempt to tax the Appellant under subsection 15(1) was a new basis for assessment which could not be made when the year was statute barred. In this regard, he quoted McLachlin, J. (as she then was) in Continental Bank of Canada v. The Queen, 98 DTC 6501 at 6503:
... The Minister cannot argue that the Bank could not transfer its partnership interest at this stage. The Minister must accept that this transfer took place because his assessment of the Bank was based on the assumption that the Bank disposed of its partnership interest. I agree with Bastarache, J. that the Minister's argument ... raised for the first time in this Court, cannot be entertained. The Minister should not be allowed to advance a new basis for a reassessment after the limitation period has expired.
[25] Counsel then referred to Marina Homes Ltd. and Denver Homes Ltd. v. The Queen, 2001 DTC 5046 (FCTD) in which the taxpayers were assessed under sections 224 and 227 of the Income Tax Act for liability as garnishees. In its Reply, the Minister asserted for the first time and in the alternative that the taxpayers' liability might arise under section 160 of that Act. The Court rejected the Minister's alternative position, finding that liability pursuant to section 160 would be based on a different statutory provision and completely different assumptions of fact than garnishee orders under section 224 and 227.
[26] He quoted subsection 152(9) of the Act, applicable to appeals disposed of after June 17, 1999,
The Minister may advance an alternative argument in support of an assessment at any time after the normal reassessment period unless, on an appeal under this Act
(a) there is relevant evidence that the taxpayer is no longer able to adduce without the leave of the court; and
(b) it is not appropriate in the circumstances for the court to order that the evidence be adduced.
saying that while that subsection permitted the Respondent to advance a new argument subsequent to the expiry of the normal reassessment period, it did not permit the Respondent to advance a new basis for an assessment.
[27] Counsel then said the Respondent may, in the pleadings, advance:
... new conclusions of law (that is, a new statutory provision in support of the assessment) resulting from the facts assumed. The Court reached this conclusion in General Motors Acceptance Corporation of Canada v. The Queen, and distinguished Continental Bank on the basis that, in General Motors, the Crown did not make new assumptions of fact.
General Motors Acceptance Corporation of Canada v. The Queen, 99 DTC 975 (TCC).
[28] Counsel then said:
In the Amended Reply, the Respondent asserts an alternative basis for the Reassessment. That the Appellant and his spouse are not the beneficial owners of the Property is a new assumption of fact, and one which suggests the Reassessments are wrong. That the Appellant and his spouse failed to include in income a benefit in respect of the use of the Property under subsection 15(1) of the ITA is a new argument as to the applicable statutory provision.
In this case, the Respondent has not advanced an alternative argument in support of the Reassessments, as permitted by subsection 152(9). Rather, the Respondent has advanced, after the expiry of the normal reassessment period, a new basis for the Appellant's assessment. This the Respondent is not permitted to do.
RESPONDENT'S SUBMISSIONS:
[29] Counsel for the Respondent agreed that the three factors considered in determining the applicability of issue estoppel were those presented by Appellants' counsel, namely whether the same question arose in two different actions, whether the judicial decision was final and whether the same parties were involved. She agreed with Appellants' counsel on the same parties and final judgment questions but stated that the issue was whether the same question was involved in both assessments. She argued that the Consent Judgment simply stated that the Company was "liable for GST" and that the Court should look at what elements had to be involved. She said that beneficial ownership was critical and that 100% beneficial ownership was not a requirement. She referred to Appellants' conclusion that the Company had a 100% beneficial interest in the Property and said that that was not clear and that the judgment did not state that as a basis. She submitted that one would not have to determine a beneficial interest in order for a third party to be a builder and liable for GST.
[30] She then presented authorities showing that there were interests in real property other than beneficial ownership interests, namely those created by mechanics lien, et cetera.
[31] With respect to Respondent's pleaded alternative argument, counsel submitted that on the authority of Her Majesty the Queen v. Hollinger Inc., 99 DTC 5500, the Respondent could present alternative arguments if the amount of an assessment was not changed in the pleading. At page 5505, the Federal Court of Appeal said:
It would introduce an unnecessary measure of formalism, unwarranted by the decision of the Supreme Court and the consequent amendment to section 152, if we were to require that proper notification to the taxpayer of an alternative argument in support of an assessment can only be achieved by the Ministerial issuance of a new reassessment. This is not to say that the Minister may change the amount of an assessment in the pleadings, but only that arguments in support of an assessment can be made in pleadings, even if not included in a notice of reassessment. Changing the amount of an assessment in pleadings is tantamount to the Minister appealing his own assessment, an avenue which has been clearly rejected by the Courts.
In conclusion, I think the preliminary object of the respondent grounded on the Continental Bank case has no merit in this instance and, accordingly, the appellant was entitled to argue, as it did before the Tax Court, the new basis advanced in its Reply. The respondent was fully and timely informed of it and had ample time to prepare as the hearing of the appeal took place more than three and a half years later. All the relevant evidence was before the Tax Court judge. ...
[32] Counsel also referred to Smith Kline Beecham Animal Health Inc. v. The Queen, 2000 DTC 1526 where Bonner, J. of this Court said at page 1530:
In my view Continental Bank was never authority for the proposition that the Minister is, when defending an appeal from an assessment after the expiry of the subsection 152(4) period, confined within a conceptual prison called "basis of assessment" comprising only the facts and statutory provisions relied upon by the assessor. ...
It is long-settled law that the validity of an assessment depends on the application of the statute to the facts and not on the assessor's analysis.
[33] Counsel then submitted that there were enough facts alleged to support the alternative argument and that the situation was different from the circumstances in Continental Bank.
REPLY:
[34] In his reply, Appellants' counsel referred to the assumption in Maria Rogic's Amended Reply that:
the Appellant and her husband equally owned the beneficial interest in the Property
He then stated that if the Appellants were not the beneficial owners of the Property they could not have received any benefit. He said that the Minister could not raise contradicting assumptions of fact to support newly referred to sections of the Act. He submitted that if the above assumption was negated, there would be no facts to support a subsection 15(1) argument.
Finally, he said that in the Appellants' current appealed assessment there was no assumption in the Respondent's Amended Reply that the Company owned the Property and that a new fact suggestion and a new legal basis suggestion, beyond the statute-barred period for reassessment, would not entitle the Respondent to succeed in its alternative position.
ANALYSIS AND CONCLUSION:
[35] The Appellants' motion will succeed. First, respecting the prior assessments, the Respondent consented to judgment in writing by agreeing that the assessment of the present Appellants for GST would be vacated and that the Company would be assessed on the basis that:
... the amount assessed with respect to the self supply of the subject property be reduced to $42,000, with no penalty or pre-assessment interest to be levied on this amount;
[36] There is only one logical inference to be drawn from that settlement agreement resulting in the February 1997 judgment of this Court that:
the Appellant is liable for GST in the amount of $42,000 with respect to the self-supply of the property located at 1524 - West 59th Street, Vancouver, BC;
That inference is that the Company, to the exclusion of the Appellants, had the beneficial interest in the Property.
The relevant portions of section 191(1) of the ETA read as follows:
For the purposes of this Part, where
(a) the construction ... of a residential complex that is a single unit residential complex, the builder ... gives possession ... to a person under a lease, licence or similar arrangement ...
and
(c) the builder [or] the ... person is the first individual to occupy the complex,
the builder shall be deemed
(d) to have made and received ... a taxable supply by way of sale of the complex and
(e) to have paid as a recipient and to have collected as a supplier ... tax in respect of the supply calculated on the fair market value of the complex ...
It was agreed that the Company was, in the GST case, assessed on the basis it was a builder respecting the Property and had given possession of the Property to the Rogics by way of lease, licence or similar arrangement for the purpose of its occupancy as a place of residence. That is consistent with Company ownership of the Property.
[37] The word "builder" is defined in section 123 of the ETA, the relevant portions of that definition being:
"builder" of a residential complex ... means a person who ... at a time when the person had an interest in the real property on which the complex is situated, carries on ... the construction ... of the complex
et cetera.
The Respondent would not have agreed that the Company would be liable for GST unless it had concluded that the Company was the builder and could only have done so if it regarded the Company as having an interest in the real property on which the complex was situated. At that time the present Appellants' assessments were vacated, indicating, obviously, that they had no beneficial interest in the Property.
[38] The issue in the case in respect of which the motion is brought is whether the Appellants owned the Property. Although there is no evidence about the content of the negotiations between the parties leading to the Consent Judgment, a combination of the logic above described and the statement in R. v. Duhamel, supra, that
It is not necessary to show that the issue is specifically decided so long as it can be shown that it was a necessary logical consequence of the point actually decided. It is pure logic, not probability, likelihood or speculation.
in my conclusion, fully satisfies the requirements that are necessary for the application of the doctrine of issue estoppel.
[39] Adopting the submission of Appellants' counsel in that regard, as supplemented below, I conclude that the Respondent's alternative position, advanced after the statute-barred period for reassessment expired, is not available to the Respondent.
[40] While respecting the views of Bonner, J. of this Court in Smith Kline and the Federal Court of Appeal in Hollinger, there are different circumstances in this appeal. In Hollinger, the matter under dispute was that the reassessment was based on the assumption that loss shares acquired by Hollinger were capital property. As the Court said at page 5504:
The position now taken by the appellant that the loss shares were not capital property is obviously a revocation of its prior unsuccessful assumption. From the evidence before us and before the Tax Court judge, it is impossible, however, to determine whether the limitation period for reassessing had expired when this new basis was first raised by the Minister. ...
Because the limitation date is not in evidence, I am of the view that the Continental Bank principle relied upon by the respondent, namely that the Crown is not permitted to advance a new basis for reassessment after the limitation period has expired, cannot be applied in this instance.
Apart from not knowing the reassessment limitation date, whether the loss shares were or were not capital property is a matter of legal determination - not an assumption of fact basic to the issue of a reassessment.
[41] In Smith Kline the Respondent sought to amend its pleadings to add additional statutory provisions to support the assessment. Counsel pointed out that the Respondent did not seek to appeal the existing assessment by asserting a claim for more tax than already assessed. The judgment, at page 1529 says:
Rather, the objective is to ensure that it is open to the Respondent to defend the existing assessments by relying on statutory provisions which, when applied to material facts already pleaded will support the assessments of Part XIII tax, either in whole or in part.
(emphasis added)
[42] The instant case differs in that there is a fundamental change in the fact assumption forming the foundation of Respondent's alternative submission, namely that "if the Appellant did not beneficially own the Property" such Appellant failed to include in income
...a benefit in respect of the personal use of the Property ... and such benefit must be included in the Appellant's income pursuant to subsection 15(1) of the Act.
This clearly implies ownership of the Property by the Company. Ownership is substantially a matter of fact. The assumption of fact upon which the assessment was based was that the Appellants owned the beneficial interest in the Property equally. The assessment, based upon that assumption, was that the Appellants should be taxable on the gain on the sale of the Property, such gain totalling $184,982. Not only is there a fundamental factual assumption difference (which was not the case in either Hollinger or Smith Kline) but there is no exposition of the amount of the benefit referred to in the alternative submission arising from the presumed personal use of the Property. The term "personal use of the property" connotes possession of same for living purposes. Assuming the Respondent's allegations in its Reply are factually correct, the Property having been purchased on April 1, 1993 and sold in October, 1994, there would, given a reasonable period of several months for house construction, be a benefit equal to the fair market rental of the Property for a period slightly in excess of one year. The amount of such benefit would be minimal relative to the sum of $184,982 and would have no relation to it.
[43] In Marina (supra) at page 5052, McKay, J. quoted Stone, J.A. at page 5662 of Schultz v. The Queen (1995), 95 DTC 5651:
I do not understand the law as developed in these cases prevented the Minister from pleading the alternative defence before the Tax Court of Canada. It is true that in pleading he is subject to certain constraints. For example, he cannot plead an alternative assumption when to do so would fundamentally alter the basis on which his assessment was based as to render it an entirely new assessment.
At page 5653, the learned Justice said:
The alternative ground for an assessment pursuant to s. 160, is a matter to be pursued, if at all, by formal action by the Minister by means of a reassessment under the Act. It is not a matter for endorsement by the Court at this stage.
[44] The alternative submission to the effect that the Company, not the Appellants, owned the Property is a fundamental change in the basis of the assessment and is not available to the Respondent.
[45] Accordingly, the motion will be granted, both questions posed by the Appellant being answered in the affirmative, and the appeals will be allowed with costs.
Signed at Ottawa, Canada this 27th day of August, 2001.
"R.D. Bell"
J.T.C.C.
COURT FILE NO.: 1999-2483(IT)G and 1999-2484(IT)G
STYLE OF CAUSE: Ante Rogic v. The Queen
Maria Rogic v. The Queen
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 30, 2001
REASONS FOR JUDGMENT BY: The Honourable Judge R.D. Bell
DATE OF JUDGMENT: August 27, 2001
APPEARANCES:
Counsel for the Appellant: Thomas M. Boddez
Counsel for the Respondent: Linda Bell
COUNSEL OF RECORD:
For the Appellant:
Name: Thomas M. Boddez
Firm: Thorsteinssons
Vancouver, British Columbia
For the Respondent: Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Canada
1999-2483(IT)G
BETWEEN:
ANTE ROGIC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on common evidence with the motion of Maria Rogic
(1999-2484(IT)G) on July 30, 2001 at Vancouver, British Columbia, by
the Honourable Judge R.D. Bell
Appearances
Counsel for the Appellant: Thomas M. Boddez
Counsel for the Respondent: Linda Bell
JUDGMENT
The motion for application of the doctrine of issue estoppel is granted and the appeal from the reassessment made under the Income Tax Act for the 1994 taxation year is allowed, with costs, and the reassessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 27th day of August, 2001.
|
"R.D. Bell" |
J.T.C.C.
1999-2484(IT)G
BETWEEN:
MARIA ROGIC,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Motion heard on common evidence with the motion of Ante Rogic
(1999-2483(IT)G) on July 30, 2001 at Vancouver, British Columbia, by
the Honourable Judge R.D. Bell
Appearances
Counsel for the Appellant: Thomas M. Boddez
Counsel for the Respondent: Linda Bell
JUDGMENT
The motion for application of the doctrine of issue estoppel is granted and the appeal from the reassessment made under the Income Tax Act for the 1994 taxation year is allowed, with costs, and the reassessment is referred back to the Minister of National Revenue for reconsideration and reassessment in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada this 27th day of August, 2001.
|
"R.D. Bell" |
J.T.C.C.
[1] The Company's assessment was based upon an assumed sale price of $1,000,000. The Appellants' tax was assessed on the actual sale price of $1,041,000.
[2] In response to an Amended Notice of Appeal.
[3] The same appears in the Amended Reply respecting Ante Rogic.
[4] Angle v. MNR, [1975] 2 SCR 248 at 255, citing Lord Shaw in Hoystread v. Commissioner of Taxation, [1920] A.C. 155 (H.L.).
Spens v. IRC, (1970) 3 All ER 295.
Abacus Cities v. Bank of Montreal, [1987] AJ No. 833 (Alta C.A.).
[5] Alberta v. Woycenko (1990), 105 AR 159 (CA).
SCF Finance Co. Ltd. v. Masri (No. 3)(1986), [1987] 1 All E.R. 194 (Eng. C.A.), at 208.
The Queen v. Chevron Canada Resources Limited, 98 DTC 6570, (FCA).
Ho-A-Shoo v. A.G. for Canada et al, 2000 DTC 6293 (Ont. S.C.J.).
Pezzelato v. The Queen, 96 DTC 1285 (TCC).