ORDER:
The taxing officer taxed this bill of costs on the basis that the proceedings fell within the terms of 1(3)(b) of tariff “A” of the Federal Court Rules.
I am of opinion that an appeal to the Trial Division of this Court under and pursuant to the Income Tax Act is (1) an “action” and not an “appeal” and (2) the judgment sought is “a final determination of the tax payable” and therefore is not a proceeding in which “no judgment is being sought for payment of an ascertained amount” within the meaning of those words in item 1 (3)(b) of said tariff “A”.
As a consequence this bill of costs should have been taxed as in Class III, proceeding under item 1 (3)(d) of said tariff “A”, in that the amount involved was over $50,000.
Because this is the first time this point has been raised, and because of its importance, I am making no direction to re-tax this bill of costs and therefore the appeal herein is dismissed without costs.