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Date: 20011003 Neutral citation: 2001 FCA 290 NOËL J.A. BETWEEN: ELIZABETH MULAK AND ROMAN MULAK Applicants and HER MAJESTY THE QUEEN Respondent Heard at Halifax, Nova Scotia, on September 28, 2001. Judgment delivered at Ottawa, Ontario on October 3, 2001. REASONS FOR JUDGMENT BY: NOËL J.A. CONCURRED IN BY: RICHARD C.J. ROTHSTEIN J.A. Date: 20011003 Neutral citation: 2001 FCA 290 CORAM: RICHARD C.J. ROTHSTEIN J.A. NOËL J.A. BETWEEN: ELIZABETH MULAK AND ROMAN MULAK Applicants and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT [1] This is an application for judicial review of a decision of the Tax Court of Canada rendered pursuant to the informal procedure dismissing the appeals brought by Elizabeth and Roman Mulak (the applicants) with respect to their 1993 and 1994 taxation years respectively. [2] The applicants raise a number of grounds in support of their application. I have carefully considered each one and have come to the conclusion that the application cannot succeed. [3] One ground merits some elaboration. The Tax Court Judge in dismissing the appeals stated that the applicants bore the onus of demonstrating that the assessments were wrong and noted that they had chosen not to testify. The applicants contend that they ought to have been told by the Tax Court Judge that they bore the onus and that their testimony was necessary to overcome this burden. The suggestion is that they were somehow trapped into believing that their testimony was not necessary. [4] The record does not bear this out. It reveals that the attack against the assessments as framed by the applicants was not a function of their testimony. What the applicants attempted to demonstrate throughout the objection and the appeal process was that the auditor was so lacking in professionalism and honesty that his assessments could not be relied on. That is how the Tax Court Judge understood the nature of the attack brought by the applicants and he cannot be faulted for viewing the matter that way. [5] The Tax Court Judge, after hearing the testimony of the auditor, and the other Revenue officials called by the applicants in support of their case came to the view that the errors committed in the course of the audit were not such as to invalidate the assessments. As the applicants raised no other ground, he proceeded to dismiss the appeals. [6] The applicants are unhappy with the result but they cannot fault the Tax Court Judge for dealing with their case as they chose to present it. [7] I would dismiss the application with costs. "Marc Noël" J.A. "I agree. J. Richard C.J." "I agree. Marshall Rothstein J.A." |
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