INCOME TAX |
Income Calculation |
Deductions |
Maysky v. Canada (Attorney General)
A-563-01
2003 FCA 237, Pelletier J.A.
26/5/03
3 pp.
Judicial review of Tax Court Judge's (T.C.J.) decision holding applicant's rental property did not constitute source of income, disallowing deductions claimed by applicant--T.C.J. found personal element in applicant's use of property (property formerly applicant's home; applicant using property as collateral for line of credit pertaining to realty business; applicant's acknowledgement of retaining pride in maintaining home as asset to neighbourhood) superseding commercial activity--Application allowed--Case herein decided prior to S.C.C. decision in Stewart v. Canada, [2002] 2 S.C.R. 645--Stewart deciding that if activity commercial in nature, reasonable expectation of profit test could not be used to second-guess taxpayer's business decisions--However, where activity has personal element, then number of factors, including reasonable expectation of profit, to be taken into account in deciding if it is source of income for purposes of Income Tax Act--Property in question rental property since 1980s--Personal elements herein not sufficient to make applicant's dealings in respect of property something other than commercial activity--Applicant's motivation for maintaining house irrelevant to question of commercial activity--Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1.