Cleary c. La Reine

Cleary c. La Reine

Where the Minister relied on inadmissible hearsay and on bank/accounting documents not proved in accordance with the Canada Evidence Act, the Minister failed to discharge the evidentiary burden required to establish that transfers attracting s.160 liability occurred (or that late reassessments were justified);...

Source-derived case information.

Citation
2005 CCI 337
Parties
Appellant: Les Gestions Rodney Cleary & Fils Ltée; Appellant: Cedric Cleary; Appellant: 177181 Canada Inc.; Respondent: Sa Majesté la Reine
Court
Tax Court of Canada
Jurisdiction
Canada
Judgment Date
24 June 2005
Procedural Posture
Tax Court Appeals Under the Income Tax Act / Judgment (reasons Delivered)
Outcome
Mixed: some appeals allowed and assessments annulled, some appeals dismissed, and certain matters referred back to the Minister for reassessment to give effect to proven transfers.
Legal Topics
Section 160 Transferee Liability, Reassessment Limitation Periods S.152, Admissibility of Hearsay, Proof of Bank and Commercial Records (canada Evidence Act Ss.29 30), Beneficial Ownership and Trusts
Source Language
fr
Tax Law Evidence Law Civil Procedure Section 160 Transferee Liability Reassessment Limitation Periods S.152 Admissibility of Hearsay Proof of Bank and Commercial Records (canada Evidence Act Ss.29 30) Beneficial Ownership and Trusts

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Parties

Les Gestions Rodney Cleary & Fils Ltée

Appellant

Cedric Cleary

Appellant

177181 Canada Inc.

Appellant

Sa Majesté la Reine

Respondent

Procedural Posture

Tax Court Appeals Under the Income Tax Act / Judgment (reasons Delivered)

  1. 1 Whether appellants are liable under s.160 of the Income Tax Act for transfers from Rodney Cleary
  2. 2 Whether the federal reassessments for 1983 and 1989 were valid given limitation rules and reliance on provincial reassessments
  3. 3 Admissibility and sufficiency of hearsay and bank/accounting records relied on by the Minister

Ratio Decidendi

Where the Minister relied on inadmissible hearsay and on bank/accounting documents not proved in accordance with the Canada Evidence Act, the Minister failed to discharge the evidentiary burden required to establish that transfers attracting s.160 liability occurred (or that late reassessments were justified); accordingly several assessments were annulled where the evidence failed, while other assessments were upheld where the judge found transfers or gifts proven on the balance of probabilities.

Court Disposition

Mixed: some appeals allowed and assessments annulled, some appeals dismissed, and certain matters referred back to the Minister for reassessment to give effect to proven transfers.

Orders

  • Docket 2000-2678(IT)G (Les Gestions Rodney Cleary & Fils Ltée) – appeal allowed; assessment cancelled
  • Docket 2000-2681(IT)G (Les Gestions Rodney Cleary & Fils Ltée) – appeal allowed; assessment cancelled