Alsayegh v. Canada

Alsayegh v. Canada Court (s) Database Federal Court of Appeal Decisions Date 2007-01-18 Neutral citation 2007 FCA 47 File numbers A-432-05, A-433-05 Decision Content Date: 20070118 Dockets: A-432-05 A-433-05 Citation: 2007 FCA 47 CORAM: LÉTOURNEAU J.A. EVANS J.A. MALONE J.A. BETWEEN: A-432-05 HIKMAT ALSAYEGH Appellant and HER MAJESTY THE QUEEN Respondent A-433-05 FIRIAL ALSAYEGH Appellant and HER MAJESTY THE QUEEN Respondent Heard at Vancouver, British Columbia, on January 15, 2007. Judgment delivered at Vancouver, British Columbia, on January 18, 2007. REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: EVANS J.A. MALONE J.A. Date: 20070118 Dockets: A-432-05 A-433-05 Citation: 2007 FCA 47 CORAM: LÉTOURNEAU J.A. EVANS J.A. MALONE J.A. BETWEEN: A-432-05 HIKMAT ALSAYEGH Appellant and HER MAJESTY THE QUEEN Respondent A-433-05 FIRIAL ALSAYEGH Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT LÉTOURNEAU J.A. [1] The appellants in files A-432-05 and A-433-05 appeal against a decision of McArthur J. of the Tax Court of Canada (judge). By Order of Evans J.A., dated November 30, 2005, the two appeals have been consolidated and heard together. The appeal in file A-432-05 (Hikmat) is considered the lead appeal. The appellants are husband and wife. Hikmat represents himself and his wife in these appeals. [2] The appellants have raised a number of complaints against the decision of the judge. They also seek a variety of remedies from this Court. I shall address the complaints first. [3] Of all the grounds of appeal raised by the appellants, only two deserve to be addressed in my respectful view. [4] The appellants submit that the judge erred in concluding that the appellant Hikmat was the sole owner of a property located on Rumble Street. They contend that they held all their properties jointly and that this was also their intention with respect to the Rumble Street property. [5] In my view, the appellants’ contention results from their misunderstanding of the law applicable to this issue. There was ample and cogent evidence before the judge to support his conclusion. The legal title to the property was registered in Hikmat’s name. The financial dealings regarding that property also indicated that Hikmat was the sole owner. So did the interim purchase agreement signed with the seller’s broker, Re/Max. [6] In addition, in his 1991, 1992 and 1993 income tax returns, the appellant Hikmat declared that he was the sole owner of the Rumble Street property. Consequently, he claimed all the losses while his wife claimed none. He also agreed to assume the mortgage financing personally. [7] Finally, in her original Notice of Appeal filed in the Tax Court of Canada, the wife of the appellant Hikmat stated that all the properties were owned by both of them on a 50/50 basis, except the property on Rumble Street. On the basis of that evidence, I cannot say that the judge’s conclusion was unreasonable. [8] The appellants contest the interest, penalties and costs imposed upon them. I see no reason to interfere with the judge’s finding. [9] First, the interest and penalties were assessed under sections 161 and 162 of the Income Tax Act for the appellants’ late filing of their income tax returns. Once again the evidence supported his conclusion as well as the finding that the appellants had not met the threshold for a due diligence defence. [10] As for the allocation of costs before the Tax Court, which involves an exercise of discretion, the judge awarded them to the respondent in view of the limited success that the appellants had with their appeals. However, to the benefit of the appellants, he limited them to one set because there was a joint hearing of the two appeals. I cannot say that his decision reveals an improper exercise of discretion. [11] Most of the remedies sought from this Court by the appellants are either beyond our jurisdiction or not properly within the scope of the appeals. However, there is one minor correction that the appellants want this Court to make to the adjusted cost base of a property located at 5318 Bruce Street. The respondent concedes that the amount of the adjusted cost base of that property should be $163,037 instead of the $158,975 determined by the judge. [12] For these reasons, I would dismiss the appeal in file A-433-05. I would also dismiss the appeal in file A-432-05, except that the reassessment ordered by the judge in the third paragraph of his judgment, dated August 19, 2005, in file 2000-4265 (IT) G should be “on the basis that the adjusted cost base for 5318 Bruce Street property is increased to $163,037. [13] I would award the respondent one set of costs, plus disbursements in each file. “Gilles Létourneau” J.A. “I agree. John M. Evans J.A.” “I agree B. Malone J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKETS: A-432-05 and A-433-05 STYLE OF CAUSE: HIKMAT ALSAYEGH and FIRIAL ALSAYEGH v. HER MAJESTY THE QUEEN PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: January 15, 2007 REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: EVANS J.A. MALONE J.A. DATED: January 18, 2007 APPEARANCES: Hikmat Alsayegh FOR THE APPELLANTS Bruce Senkpiel FOR THE RESPONDENT SOLICITORS OF RECORD: John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT