http://decision.tcc-cci.gc.ca/tcc-cci/decisions/en/item/218898/index.do
Feizmohammadi v. The Queen (February 16, 2017 – 2017 TCC 28, Jorré, J.).
Précis: The taxpayer took closed the purchase of a condo on October 30, 2009, listed it for sale on December 19, 2009 and closed the sale on January 12, 2010. The taxpayer claimed that he and his family took possession of the condo on May 11, 2009 and lived there until it was sold. The Court examined a number of factors, including evidence that seemed to suggest there was no electrical consumption at the condo from July 1, 2009 to December 31, 2009 (or, if there was, someone else paid the bill). On balance the taxpayer did not satisfy the Court that the condo was ever occupied by him or his family as a principal residence and the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
Decision: The Court simply did not accept the taxpayer’s evidence:
[28] However, there are three items of evidence which are impossible to reconcile with anyone in the Appellant’s family having lived in the Yonge Street property.
[29] First, in the same questionnaire filed as Exhibit R-1, the Appellant is asked: “Did you reside in this property?” His answer is “no”. He is also asked for the names and ages of people who resided with him; he leaves the answer to that question blank.
[30] While it could be a misunderstanding on the part of the Appellant, I find it unlikely that the Appellant would have given these answers if the subject property had been the family residence for several months.
[31] Second, on the listing for the subject property, Exhibit R-3, towards the top in the middle just below the name of the sellers, one finds “Occup:” which clearly means occupant or occupancy and next to it the word “Tenant”. While this could be an error as suggested, I think it is unlikely given that the listing agent was Ms. Aliakbarli and she would have provided the information about the property.
[32] If there was a tenant the family could not be living there.
[33] Third, Exhibit R-2 contains two electricity bills, one dated September 24, 2009 and one dated January 22, 2010. These are addressed to the Appellant and are in respect of the Yonge Street property.
[34] There is, however, something quite odd about these bills. Both are headed “FINAL BILL”. The first one covers the period from May 11, 2009 to July 1, 2009. The second covers the period from December 31, 2009 to January 12, 2010.
[35] The first bill shows electricity usage of 164 kWh and a total bill of $179.97.
[36] When one looks at the second, later, bill it shows on the right side under the heading “Compare your daily usage” the reading date of January 12, 2010 with a usage of 20 kWh and it shows an earlier reading date of July 1, 2009 with 164 kWh usage. In addition, on the left side four lines above the line which says in bold letters “Total Due by Feb 10 2010”, it shows “Amount of last bill” as $179.97.
[37] The 164 kWh usage shown on the second bill is exactly the same as the usage shown on the first bill; the $179.97 amount shown as the “Amount of last bill” on the second bill is identical with the amount of the first bill.
[38] The only possible conclusion is that the previous consumption and the amount of the previous bill shown on the second bill is purely and simply the bill dated September 24, 2009 for the period ending on July 1, 2009.
[39] Consequently, there is either no consumption of electricity after July 1, 2009 and before December 31, 2009 or, for that period, someone else is paying for the electricity and that person is being billed. In either case it is incompatible with the Appellant’s family living at the Yonge Street property.
[40] Given these three items of the evidence which are inconsistent with members of the family living at the Yonge Street property, it is simply not probable that the Appellant or members of his family ordinarily resided at that property.
[Footnotes omitted]
As a result the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.