BRENT KERN FAMILY TRUST Appellant v. HER MAJESTY THE QUEEN, 2014 FCA 230

Date: 20141014 Docket: A-375-13 Citation: 2014 FCA 230 CORAM: DAWSON J.A. STRATAS J.A. NEAR J.A. BETWEEN: BRENT KERN FAMILY TRUST Appellant and HER MAJESTY THE QUEEN Respondent Heard at Toronto, Ontario, on October 14, 2014. Judgment delivered from the Bench at Toronto, Ontario, on October 14, 2014. REASONS FOR JUDGMENT OF THE COURT BY: NEAR J.A. Date: 20141014 Docket: A-375-13 Citation: 2014 FCA 230 CORAM: DAWSON J.A. STRATAS J.A. NEAR J.A.

BETWEEN: BRENT KERN FAMILY TRUST Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Toronto, Ontario, on October 14, 2014). NEAR J.A. [ 1 ] This is an appeal from the Tax Court of Canada. For reasons cited at 2013 TCC 327 , the Court dismissed an appeal from reassessments made under the Income Tax Act . [ 2 ] The main issues in this matter are whether the Federal Court of Appeal (FCA) case of Canada v.

Sommerer , 2012 FCA 207 , applied to the facts of this case or, in the alternative, whether Sommerer was manifestly wrong and ought not to be followed. [ 3 ] In our view there is no reviewable error in the trial judge’s finding that Sommerer applied, given that Sommerer decided that ss. 75(2) applies only to a settler or contributor and not where there is a fair market value disposition into the trust. [ 4 ] In this Court, counsel for the appellant spent most of his time challenging Sommerer on the basis that the decision was manifestly wrong largely on the basis that both the trial judge and the FCA in Sommerer were not informed sufficiently as to the history and purpose of ss. 75(2). [ 5 ] Like the trial judge in this case (at para. 27) we conclude that this Court in Sommerer “spent considerable time analyzing the text, content and purpose of the subsection, or at least sufficiently enough” to arrive at a correct

interpretation of ss. 75(2). In our view,

counsel for the appellant has not pointed to any fundamental matter that was overlooked sufficient to justify intervention on the basis of Miller v. Canada (Attorney General) 2002 FCA 370 at para. 10 . [ 6 ] Therefore despite the able arguments of Mr. Pniowsky, the appeal shall be dismissed with costs in this Court. "D.G.Near" J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-375-13 STYLE OF CAUSE: BRENT KERN FAMILY TRUST v. HER MAJESTY THE QUEEN PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 14, 2014 REASONS FOR JUDGMENT OF THE COURT BY: DAWSON J.A. STRATAS J.A.

NEAR J.A. DELIVERED FROM THE BENCH BY: NEAR J.A. APPEARANCES : Jeff Pniowsky For The Appellant Deen Olsen Adam Gotfried For The Respondent SOLICITORS OF RECORD : Thompson Dorfman Sweatman LLP Barristers and Solicitors Winnipeg, Manitoba For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent