Federal Court of Appeal - Kallies v. Canada

[1] We are all of the view that the Tax Court of Canada made no reviewable error in dismissing the applicant's appeals from the Minister's assessments for the 1993 and 1994 taxation years.

[2] The learned Tax Court Judge concluded that the assumptions of fact pleaded by the respondent had not been refuted. Among those assumptions were that the business of Promotions One of Canada Limited, the applicant's company, "was supplying promotional and advertising products to the customers" and that the amounts in issue represented payments made by the corporation to the applicant, its sole shareholder, for costs incurred by him in "attending race car driving schools in the United States" for "upgrading his skill as a race car driver for personal gratification and were of no benefit to the Corporation".

[3] The applicant referred in argument to affidavit evidence filed in support of this application as showing that his activities on the race track were directly related to the corporation's business. It must be pointed out, however, that this evidence was not before the Tax Court Judge and therefore cannot now avail the applicant. The application for judicial review does not constitute a trial de novo in this Court. However, we would note in passing that nothing in the record suggests that the applicant's credibility was in issue. Rather, the basis of the Tax Court's decision was that the evidence before the Court did not establish that the expenses in issue were made on account of the corporation but rather that they were made on the personal account of the applicant. Accordingly, we can find no error in the Tax Court Judge's finding that the benefits received by the applicant from the corporation "were not directly related to the business or business advertising" of the corporation.

[4] The application for judicial review will be dismissed.

"A.J. STONE"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-343-00

STYLE OF CAUSE: Gary Kallies

-and-

Her Majesty The Queen

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: December 4, 2001

REASONS FOR JUDGMENT OF THE COURT: Stone, Rothstein, Sexton JJ.A

RENDERED FROM THE BENCH BY: Stone J.A.

APPEARANCES:

Mr. Gary Kallies ON HIS OWN BEHALF

Ms. Catherine Letellier de St-Just FOR THE RESPONDENT

SOLICITORS OF RECORD:

Mr. Gary Kallies ON HIS OWN BEHALF

Camlachie, Ontario

Mr. Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario