Tibilla v. R. – FCA: Tax Court decision affirmed on date of sale and ACB of property

Bill Innes on Current Tax Cases

http://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/98266/index.do New Window

Tibilla v. Canada (October 8, 2014 – 2014 FCA 227) was an appeal from a decision of the Tax Court. In the Tax Court the appellant unsuccessfully argued that he had disposed of real property in 2008, not 2007. He also was unsuccessful in arguing that he had incurred expenses of $52,810 which increased the adjusted cost base of the property. He appealed both issues to the Federal Court of Appeal.

The appellant was unsuccessful on the first point:

[3] The judge reviewed the evidence and concluded that the sale had occurred in December 2007. In so concluding, she considered the appellant’s version of the events in which he asserted that because, at the time of the sale, he and the purchaser had a dispute regarding the purchase price, which was only settled in March 2008, it was open to him to treat the disposition as having occurred in 2008.

[4] The judge also considered the fact that the sale had occurred by way of a deed of sale before a notary on December 18, 2007 and that in the deed, the appellant, as vendor, had acknowledged having received the purchase price of $285,000 from the purchaser and in respect of which he gave a complete discharge.

[5] She also gave consideration to the appellant’s testimony to the effect that he had received advice from someone at the Canada Revenue Agency (CRA) that he could include his income in the 2008 taxation year.

[6] After proper consideration, she concluded that the capital gain had to be declared in 2007.

[7] We have not been persuaded that the judge made any error in concluding as she did on this issue.

Similarly, he failed to persuade the Court of Appeal on the second point:

[12] In the end, the judge found it difficult to believe the appellant’s explanations and she indicated in her reasons why this was so. While we do not doubt that it is possible that the appellant did file the documents which he says he filed in 2002 with his income tax return, it was open to the judge, on the evidence before her, to disregard the appellant’s testimony.

[13] Hence, the judge held that the appellant was not entitled to add the expenses of $52,810 to his adjusted cost base.

[14] We have also not been persuaded that this conclusion by the judge is an error. With respect to the appellant’s arguments concerning the proper application of section 230 of the Income Tax Act, we are also of the view that the judge made no error.

The Court of Appeal dismissed the appeal but did not award costs against the appellant.