Date: 19980921

Docket: A-480-95

CORAM:      MARCEAU J.A.

         LÉTOURNEAU J.A.

         ROBERTSON J.A.

BETWEEN:

     ANTHONY HUMPHREY

     Appellant

     - and -

     HER MAJESTY THE QUEEN

     Respondent

     REASONS FOR JUDGMENT OF THE COURT

     (Delivered from the Bench at Vancouver, British Columbia,

     on Monday, September 21, 1998)

MARCEAU J.A.

[1]      We are all of the view that this appeal from the decision of the Tax Court judge cannot succeed.

[2]      A determination that a taxpayer could not have a reasonable expectation of profit when he engaged into a certain activity or operation, in order for this activity or operation to be accepted as a source of income giving rise to deductible expenses, is an objective one to be drawn from all proven circumstances and facts analyzed in reference to the various criteria that may have relevance (see Dorfman v. M.N.R., [1972] C.T.C. 151 and, especially, Moldowan v. The Queen (1977), 77 D.T.C. 5213). Among those criteria may be said to be the existence or absence of any personal element that may explain the taxpayer"s involvement in the carrying out of the activity, as found in the case of Tonn v. The Queen , 96 D.T.C. 6001, to which the appellant has referred in support of his position. But the legal principle involved remains the same and the Tax Court judge was clearly quite aware of it. His understanding of the fact and his analysis of the evidence, which led him to the conclusion that the expectation of profits, if any, was not reasonable, are binding upon us unless we become convinced that he made some egregious error in his treatment of the facts or his view was influenced by some irrelevant considerations. His reasons clearly show that he took into account all of the facts that had been put into evidence and proceeded to a proper balancing of the factors that could assist the appellant"s contention and those that contradicted it.

[3]      The appeal will therefore be dismissed with costs.

     "Louis Marceau"

     J.A.

Date: 19980921

Docket: A-480-95

CORAM:      MARCEAU J.A.

         LÉTOURNEAU J.A.

         ROBERTSON J.A.

BETWEEN:

     ANTHONY HUMPHREY

     Appellant

     - and -

     HER MAJESTY THE QUEEN

     Respondent

Heard at Vancouver, British Columbia, on Monday, September 21, 1998.

Judgment rendered from the Bench on Monday, September 21, 1998.

REASONS FOR JUDGMENT OF THE COURT BY:      MARCEAU J.A.

    

     IN THE FEDERAL COURT OF APPEAL

    

Date: 19980922

Docket: A-480-95

BETWEEN:

     ANTHONY HUMPHREY

     Appellant

     - and -

     HER MAJESTY THE QUEEN

     Respondent

    

     REASONS FOR JUDGMENT

     OF THE COURT