[OFFICIAL ENGLISH TRANSLATION]
2001-2919(IT)I
BETWEEN:
JACQUELIN GIRARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
Appeal heard on July 23, 2002, at Chicoutimi, Quebec, by
the Honourable Judge Alain Tardif
Appearances
For the Appellant: The Appellant himself
Counsel for the Respondent: Marie-Aimée Cantin
JUDGMENT
The appeal from the assessment made under the Income Tax Act for the 1999 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 29th day of July 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 7th day of November 2003.
Sophie Debbané, Revisor
[OFFICIAL ENGLISH TRANSLATION]
Date: 20020729
Docket: 2001-2919(IT)I
BETWEEN:
JACQUELIN GIRARD,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
Tardif, J.T.C.C.
[1] This is an appeal from an assessment for the 1999 taxation year.
[2] The point for determination is whether the Minister of National Revenue (the "Minister") was correct in disallowing the appellant the amount of $8,737 claimed in respect of carrying charges and interest expenses in his income tax return for the 1999 taxation year.
[3] The facts assumed in making and confirming the assessment in the instant appeal are as follows:
[TRANSLATION]
(a) the appellant is one of the limited partners in the limited partnership, Place des Landes Enr.;
(b) by deed of sale dated December 18, 1987, a copy of which was filed at the registry office of the registration division of Portneuf under number 309 490, the limited partnership, Place des Landes Enr., and Gaétan Bergeron, real estate investment promoter, (hereinafter "Place des Landes Enr.") purchased immovables (hereinafter the "immovable") located in the municipality of Saint-Augustin-de-Desmaures;
(c) in February 1996, Place des Landes Enr. sold the immovable to Compagnie Algoss Inc ("Algoss"), a company legally incorporated under Part 1A of the "Companies Act", having its head office in Québec;
(d) according to the 1996 contract of sale, Algoss assumed the existing $710,803 hypothec with the National Bank of Canada (the "Bank") and undertook to pay a bank overdraft of $3,102.98 for the tax reserve for and on behalf of the vendor;
(e) in May 1998, Algoss experienced financial difficulties and failed to meet its obligations toward the Bank;
(f) the Bank instituted an action in the Superior Court, District of Chicoutimi, against the limited partners by virtue of the surety they gave in respect of the obligations of Place des Landes Enr. and Algoss Inc. toward the Bank under the terms of a deed of hypothec dated June 4, 1991;
(g) the Bank took the necessary action to exercise its rights as a hypothec creditor over the immovable, the property of Algoss, and to have the immovable sold by private sale subject to court control;
(h) as appears in the letter dated March 1, 1999, sent to Place des Landes Enr. by the Bank, there was an agreement between the limited partners and the Bank to the effect that, provided the sale under court control took place, the limited partners undertook to purchase the immovable personally or through a company to be formed for the sum of $705,000 and furthermore to pay at the time of purchase half the amount of $21,598.85 paid to Hydro-Québec by the Bank, that is, $10,799.43;
(i) on June 23, 1999, Pierre Lévesque, counsel and legal adviser, confirmed for the limited partners that a final agreement had been entered into with a new limited partnership (Groupe Serge Gagnon) for the purpose of transferring it the limited partners' rights on the purchase of the immovable for $610,000;
(j) thus, in accordance with the agreement in principle entered into between the limited partners and the Bank, the overall and final contribution of all the limited partners amounted to $105,799.43 ($705,000 + $10,799.43 - $610,000);
(k) the appellant was asked to pay $8,137.43, which amount was established on the basis of his adjusted interest in Place des Landes;
(l) the private sale under court control of the immovable was made on October 27, 1999, under number 498,763 at the Portneuf registry office for the sum of $705,000;
(m) as a result of the deed of sale for $705,000 and the payment of $10,799.43, the Bank gave the limited partners a general and final discharge and released them from their surety; the Bank discontinued its legal action against the limited partners;
(n) in addition, the appellant paid Pierre Lévesque $579.34 for his share of the fees in the matter of the surety to the Bank;
(o) at this stage of the proceedings, the administrative fees of $20 paid to the HSBC Bank should be allocated.
[4] After being sworn, the appellant admitted all the facts that were assumed.
[5] As a result, the burden of proof was on the appellant; in other words, the appellant had to show on the balance of evidence that his claims were valid.
[6] The appellant submitted only one piece of evidence in support of his appeal. He stated that the Minister had allowed all the other limited partners in the same case the deduction that he himself had claimed and that had been disallowed. He even filed, as Exhibit A-1, a list of the taxpayers with their social insurance numbers, adding that all those persons had been allowed the deduction he had been disallowed.
[7] This was clearly not an admissible argument since, each case standing on its own merits, there may be a multitude of factors differing from those in the appellant's case. Furthermore, it could not be determined on the evidence adduced whether the cases in question had been the subject of any kind of audit or determination.
[8] Moreover, I clearly informed the appellant before he made his arguments that references to other cases were not relevant in support of his appeal. Despite that clarification, the appellant brought no reasons, evidence or arguments supporting the soundness of his appeal. Moreover, after he had admitted all the facts assumed by the respondent in making the assessment, it became very difficult, if not impossible, for him to discharge the burden of proof that was on him.
[9] Therefore, the appeal must be dismissed.
Signed at Ottawa, Canada, this 29th day of July 2002.
|
"Alain Tardif" |
J.T.C.C.
Translation certified true
on this 7th day of November 2003.
Sophie Debbané, Revisor