Date: 19980430
Docket: A-664-95
CORAM: THE CHIEF JUSTICE
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THOMAS N. COLLINS
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, Thursday, April 30, 1998.
Judgment delivered from the Bench at Ottawa, Thursday, April 30, 1998.
REASONS FOR JUDGMENT OF THE COURT DELIVERED BY: ROBERTSON J.A.
Date: 19980430
Docket: A-664-95
CORAM: THE CHIEF JUSTICE
LINDEN J.A.
ROBERTSON J.A.
BETWEEN:
THOMAS N. COLLINS
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, Thursday, April 30, 1998)
ROBERTSON J.A.
[1] Assuming without deciding that the Tax Court of Canada possesses the jurisdiction to consider whether property was held subject to a constructive trust for purposes of income taxation, we are all of the view that the learned Tax Court Judge did not err in finding that no such trust had been established on the facts of this case. Nor are we persuaded that he erred in dismissing the appellant taxpayer's appeal on the basis that his ownership of the "Sherkston" shares was not subject to a resulting trust in favour of his wife.
[2] In particular, we do not accept the submission that the Tax Court Judge erred in perceiving that the taxpayer had in fact received professional advice with respect to the acquisition of the Sherkston shares. Counsel relied heavily on what is alleged to be an erroneous statement of the Tax Court Judge to the effect that legal and accounting advice had been obtained with regard to the acquisition of those particular shares when in fact no such advice had been sought nor obtained. But this is not what the Tax Court Judge said - he did not specifically find that professional advice was obtained in regard to their acquisition. When read in context, it is evident from the reasons for judgment that the Tax Court Judge held that the professional advice previously obtained in relation to the acquisition of shares in other companies was present in the mind of the tax payer when he deliberately chose to acquire the shares in Sherkston in the manner as he did. Further, no change was made in the shareholding arrangement as between the taxpayer and his wife over a three year period even though other changes were made in the shareholdings of Sherkston.
[3] In our respectful view, the Tax Court Judge was entitled to draw an inference that the taxpayer deliberately chose, based on previous experience and advice, to structure his acquisition of the Sherkston shares in the manner in which he did. The facts of this case are clearly distinguishable from those present in Attorney General of Canada v. Mervin Holizki, 95 D.T.C. 5591 (F.C.T.D.); affirmed F.C.A. March 9, 1998, and Savoie v. The Queen, 93 D.T.C. 552 (T.C.C.). Accordingly, the appeal will be dismissed with costs.
" J.T. Robertson"
J.A.
FEDERAL COURT OF APPEAL
Date: 19980430
Docket: A-664-95
BETWEEN:
THOMAS N. COLLINS
Appellant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT