Date: 19980206
Docket: 97-21(IT)I
BETWEEN:
ALI SALAHI,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
_______________________________________________________________
For the Appellant: the Appellant himself
Counsel for the Respondent: Kevin Dias
_______________________________________________________________
REASONS FOR JUDGMENT
(Delivered orally from the Bench at
Toronto, Ontario, on September 15, 1997)
Bowie, J.T.C.C.
[1] Mr. Salahi, it is not my problem to reassess you nor is it my duty to reassess you. I am bound by the decision of the Federal Court of Appeal in the Njenga[1] case and in that case the trial judge found that the Appellant's testimony was not credible. He characterized the receipts as a sorry lot.
[2] I cannot say anything better about what I have been presented with here. Indeed, I do not have receipts at all for the great bulk of the expenses that you are claiming.
[3] I cannot put a very high value on your evidence either, because it seems to me very clear from your evidence, in two respects, that it is not very reliable.
[4] The first of those is that it is quite plain that you have been quite willing to advance a claim for 210 days expenses of cab driving while putting forward the income for l59 days of cab driving. Quite obviously that is not right.
[5] In addition to that, you have told me that you did not include any of the tips in your income and, moreover, you told me you conducted your affairs on a cash basis because that is the way things work in the business. I accept that to some extent that is the way that things work in the business, but it is certainly not entirely the way things have to work in the business of driving a cab.
[6] But you told me that, at least in part, the reason for paying cash for things is so that you do not have to pay the goods and services tax and the provincial retail sales tax of l5% of your expenses. When you tell me of all those things, it is very hard for me to put a great deal of weight on your evidence.
[7] So where does that leave me? It leaves me looking at what the Federal Court of Appeal said in the Njenga case. And I quote the bottom of the page:
The Income tax system is based on self monitoring. As a public policy matter the burden of proof of deductions and claims properly rests with the taxpayer. The Tax Court Judge held that persons such as the Appellant must maintain and have available detailed information and documentation in support of the claims they make. We agree with that finding.
Now those words are binding on me. I do not have the option of saying, "No, I do not agree with that". The Federal Court of Appeal is above me in the judicial pecking order and when they say that, I have to follow it.
[8] You do not have receipts. You have what Mr. Justice McDonald refers to here as assertion without proof. He talks of self-written receipts. Well, you have one receipt for $l,000 which you told me quite candidly is dated l992, although the amount was paid in l995 and was referable you say to l992 and l993.
[9] Now when you come up with that kind of evidence, it does not inspire confidence in the rest of your evidence, I have to say.
[10] So given that I am bound by the Federal Court of Appeal's judgment, the appeals are dismissed.
Signed at Ottawa, Canada, this 6th day of Febuary, 1998.
|
"E.A Bowie" |
J.T.C.C.