BETWEEN:
ESTATE OF CHARLES R.H. KIELING,
and
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Appeal heard on April 4, 2006, at Regina, Saskatchewan
Before: The Honourable Justice D.W. Beaubier
Appearances:
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JUDGMENT
The appeal from the reassessment made under the Income Tax Act for the 2002 taxation year is dismissed in accordance with the attached Reasons for Judgment.
Signed at Ottawa, Canada, this 10th day of April 2006.
BETWEEN:
ESTATE OF CHARLES R.H. KIELING,
Appellant,
and
HER MAJESTY THE QUEEN,
Respondent.
REASONS FOR JUDGMENT
[1] This appeal pursuant to the Informal Procedure was heard at Regina, Saskatchewan, on April 4, 2006. The Appellant's Executor and brother, Rudolf Kieling was the only witness.
[2] Having read the parties' pleadings and written submissions filed, the Court heard Rudolf Kieling's testimony. As distinct from the legal argument, Mr. Kieling agreed with the facts described in the Reply to the Notice of Appeal.
[3] The arguments contained in the parties' written submissions "Respondent's Written Representations" dated March 14, 2006 and the Appellant's "Reply" dated March 11, 2006 are the gist of the appeal before the Court.
[4] Charles Kieling died in 2002 and named his brother Ruldof has his Executor. After filing Charles' income tax return Ruldolf filed a request to include a taxable capital gain of $185,000 into Charles' 2002 taxation year as deemed income. This was done by the Respondent. As a result Charles' incurred a "clawback" of his Old Age Security. The Appellant alleges that the "clawback" is contrary to the Canadian Bill of Rights, and has appealed on that basis.
[5] The Executor argued that "deemed" income is not income and that in fact Charles had no increase in his income while he was alive in 2002. In further particular, he argued that Charles was entitled to "...enjoyment of property, and the right not to be deprived thereof except by due process of law..." as set forth in subsection 1(a) of the Canadian Bill of Rights, S.C. 1960, c. 44.
[6] In the Court's view the "Respondent's Written Representations" are correct and the Appellant's argument is without foundation. The Court adopts the "Respondent's Written Representations" and the principle set out by the Supreme Court of Canada in Attorney General of Canada v. Joseph Patrick Authorson, [2003] 2 S.C.R. 40 at paragraphs 51 and 52:
The Bill of Rights does not protect against the expropriation of property by the passage of unambiguous legislation. It is unnecessary to decide now exactly what other substantive protections, if any, might be conferred by the Bill of Rights' s. 1(a)'s property guarantees.
The Bill of Rights protects only rights that existed at the time of its passage, in 1960. At that time it was undisputed, as it continues to be today, that Parliament had the right to expropriate property if it made its intention clear.
[7] Similarly, section 180.2 of the Income Tax Act is clear and unambiguous and Part 1.2 of the Income Tax Act has been properly assessed. As a result, the appeal is dismissed.
Signed at Ottawa, Canada, this 10th day of April 2006.
"D.W. Beaubier"
Beaubier J.
COURT FILE NO.: 2005-3124(IT)I
STYLE OF CAUSE: Estate of Charles R.H. Kieling v. The Queen
PLACE OF HEARING: Regina, Saskatchewan
DATE OF HEARING: April 4, 2006
REASONS FOR JUDGMENT BY: The Honourable Justice D.W. Beaubier
DATE OF JUDGMENT: April 10, 2006
APPEARANCES:
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Agent for the Appellant: |
Rudolf Kieling |
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Counsel for the Respondent: |
Sharlene Telles-Langdon |
COUNSEL OF RECORD:
Firm:
For the Respondent: John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Canada