Milne ( Re )
ITA-3150-94
Hargrave P.
23/11/94
7 pp.
Motion to stay realization proceedings under writ of execution for income tax debt-Pursuant to writ of execution sheriff seizing 86,000 out of some 400,000 shares held by taxpayer in Slumber-Magic Adjustable Bed Co., amounting to 9% of total issued and outstanding shares-Income Tax Act, s. 158 providing when Minister mailing notice of assessment of any amount payable, that part of amount assessed then remaining unpaid payable forthwith-S. 225.1 allowing tax debtor relief from execution proceedings, where appeal from assessment in progress-Taxpayer relying on R. 2100, permitting Court to stay execution of judgment if satisfied applicant unable to pay, unusual hardship i.e. sale of shares causing bankruptcy, and 1994 tax losses may offset outstanding assessment-Application dismissed-Common threads in cases dealing with s. 158 where taxpayer successful in obtaining stay of execution: appeal of tax assessment certificate not final, hardship not compensable in money in event of successful appeal by taxpayer, express or implied protection for Revenue Canada in case appeal not successful-Hardship to taxpayer if release of shares driving down share price causing taxpayer to declare bankruptcy, but possible harm to Crown if giving up secured position for promise of token monthly payments and additional lump sums when possible, if necessary to collect for tax assessment in future-On balance harm to Crown greater if execution proceedings stayed-Also, no appeal of underlying assessment-Neither for Revenue Canada to speculate on what its balance with taxpayer might be in future, nor to have to give up secured position-Income Tax Act, S.C., 1970-71-72, c. 63, ss. 158, 225.1-Federal Court Rules, C.R.C., c. 663, R. 2100.