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Date: 20030221
CORAM: NOËL J.A. SHARLOW J.A. MALONE J.A.
BETWEEN:
ROBERT D. PARTRIDGE
Applicant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, on February 19, 2003.
Judgment delivered at Ottawa, Ontario, on February 21, 2003.
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: SHARLOW J.A. MALONE J.A. Date: 20030221
CORAM: NOËL J.A. SHARLOW J.A. MALONE J.A.
BETWEEN:
ROBERT D. PARTRIDGE
Applicant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
[1] This is an application for a judicial review of the decision of Judge Rip of the Tax Court of Canada (reported as Partridge v. Canada, [2001] 4 C.T.C. 2628, [2001] T.C.J. No. 579), wherein he dismissed the applicant's appeals. [2] The reassessments in issue denied the applicant the right to deduct farm losses in the computation of his income for years 1997 and 1998 under the Income Tax Act (ITA) and to claim input tax credits under Part IX of the Excise Tax Act (ETA) for the period from January 1, 1997 to December 31, 1999, on the basis that he is not in the business of farming for purposes of the ITA and that his farm activity is not a commercial activity for purposes of the ETA. [3] By the same decision, the Tax Court Judge allowed the applicant's appeals by removing penalties which had been assessed pursuant to section 275 of the ETA. The Crown has not sought judicial review of that aspect of the decision. [4] The applicant's main submission is that farming was "the centre of his work routine" (Moldowan v. The Queen, 77 D.T.C. 5213, page 5216) and that therefore he is a class 1 farmer notwithstanding that farming provides him with no net income. He places particular reliance on this phrase as it appears in paragraph 1(a) of Interpretation Bulletin IT-322R, without however referring to the rest of that publication. [5] As the Tax Court Judge noted, the fact that farming is at the "centre" of one's "work routine" does not make it a business. The activity must go beyond mere subsistence (Reasons, paragraph 15). [6] In this respect, the Tax Court Judge found that the applicant's activities lacked commercial flavour and that he was not engaged in farming activities to make a profit, but primarily to provide "food for his table" (Reasons, paragraph 16). As such his activities did not amount to a business. [7] I have not been persuaded that the Tax Court Judge committed any reviewable error in reaching this conclusion. [8] The applicant mentioned during the hearing that the decision of the Tax Court Judge, insofar as it had been favourable to him, has yet to be complied with. Counsel for the respondent indicated that she would take steps to ensure that assessments reversing the GST penalties are issued without further delay. [9] The application should be dismissed with costs. "Marc Noël" J.A. "I agree. K. Sharlow" "I agree. B. Malone" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-667-01 STYLE OF CAUSE: Robert David Partridge vs. The Queen
PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: February 19, 2003 REASONS FOR JUDGMENT: Noël J.A. CONCURRED IN BY: Sharlow J.A. Malone J.A. DATED: February 21, 2003 APPEARANCES: Mr. Robert David Partridge ON HIS OWN BEHALF Ms. Fincham Mr. Cramer FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Robert David Partridge ON HIS OWN BEHALF Portland, Ontario Mr. Morris A. Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada Ottawa, Ontario |
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