Hafizy v. R. – FCA: Taxpayers’ appeal from Tax Court dismissed – no reversible error at trial

Bill Innes on Current Tax Cases

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/71443/index.do New Window

Hafizy v. Canada (May 1, 2014 – 2014 FCA 109) involved appeals of three taxpayers from a decision of the Tax Court that allowed their appeals only to the extent of certain concessions made by the Crown. The appeals turned on the deduction of business expenses claimed by the appellants. Much of their claims involved undocumented cash transactions. The thrust of their appeal was that the trial judge had not fairly weighed their evidence. The Federal Court of Appeal rejected their arguments:

[11] As Stratas J.A. explained in Canada v. South Yukon Forest Corporation, 2012 FCA 165 at paragraph 46, “[w]hen arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.” Here, the appellants have indeed succeeded at pulling certain leaves off the tree, as at least one of the judge’s references appears to be factually incorrect if read literally (Exhibit A-7, “Afghan Hindara”). That being said, the tree has not fallen. There are a number of irregularities with the evidence provided by the appellants that support the judge’s decision not to recognize any further expenses.

[12] As for the appellants’ allegations that there was a breach of procedural fairness, I see none. The appellants had the benefit of a full hearing where they were able to present all of their arguments. In fact, during the hearing, the judge explicitly sought further testimony on expense items that the witness had failed to address during his examination and cross-examination (A.B., page 185, lines 1 to 6).

[13] In Housen, at paragraph 46, the Supreme Court of Canada made it clear that a judge is presumed to have considered all the evidence in the record. Here, not only did the judge tell the appellants at the hearing that she “would look through the documents carefully later” (A.B., page 163, lines 2 to 4; see also A.B., page 161, lines 15 to 19), she was taken through many of the documents. And the judge expressly stated in her reasons that she made her own review of the documents filed by the appellants (Reasons at paragraph 10). She also detailed at length the imperfections in the evidence, citing specific examples that the appellants argued the respondent had not properly considered (see for example, Exhibit A-7, “Likha”, Exhibit A-2, “Taliba” and Reasons, subparagraph 10(4)).

[14] In these circumstances, the presumption that the judge reviewed all of the documents in the record has not been rebutted.

[15] In these circumstances, the appeal should be dismissed.