Judgments

Decision Information

Decision Content

Ernest G. Stickel (Appellant)
v.
Minister of National Revenue (Respondent)
Trial Division, Cattanach J.—Edmonton, Alber- ta, February 29 and March 1; Ottawa, April 18, 1972.
Income tax—Canada-U.S. Reciprocal Tax Convention, Article VIII A—U.S. resident teaching in Canada—Whether exempt from Canadian tax.
Income tax—Assessment—Powers of Minister—Whether estopped by information bulletin.
Appellant resided in the United States until July 18, 1967, when he moved to Edmonton to teach at the University of Alberta. At the end of his teaching contract on June 30, 1969, he remained in Edmonton as a consulting psycholo gist until March 1970 when he left Canada.
Held, he was not exempt from income tax in Canada on his income from teaching under Article VIII A of the Canada-U.S. Reciprocal Tax Convention.
A resident of Canada or the U.S.A. is not qualified for exemption from tax in the other country under Article VIII A unless (1) the duration of his visit to such other country does not exceed two years, and (2) the purpose of the visit was to teach.
Smith v. M.N.R. 70 DTC 1594, disapproved.
Held also, an information bulletin published by the Minis ter which mis -stated the effect of Article VIII A did not create an estoppel against the Minister.
Bowen v. M.N.R. [1972] C.T.C. 2174, disapproved; Woon v. M.N.R. [1951] Ex.C.R. 18; M.N.R. v. Inland Industries Ltd. 72 DTC 6113, applied.
INCOME tax appeal.
P. G. C. Ketchum for appellant.
Ian Pitfield for respondent.
CATTANACH J.—These are appeals from the assessment by the Minister of the appellant to income tax for his 1967 and 1968 taxation years whereby the Minister disallowed the appellant's claims to exemption from payment of tax in those respective taxation years pursu ant to Article VIII A of a Canada-U.S. Recipro cal Tax Convention concluded between the two states indicated in the title on March 4, 1942 which article reads as follows:
Article VIII A: A professor or teacher who is a resident of one of the contracting States and who temporarily visits the other contracting State for the purpose of teaching, for a period not exceeding two years, at a university, college, school or other educational institution in such other State, shall be exempted by such other State from tax on his remuneration for such teaching for such period.
This Convention was approved and declared to have the force of law in Canada by the Canada-United States of America Tax Conven tion Act, 1943.
Subsequent amendments to the Convention were also approved and declared to have the force of law in Canada by statutes duly enacted by the Parliament of Canada.
Article VIII A was added and approved by chapter 27, Statutes of Canada, 1950.
The Convention has a preamble which declares that the objectives of the two contract ing states are (1) the promotion of the flow of commerce between the two countries, (2) the avoidance of double taxation and (3) the pre vention of fiscal evasion in the case of income taxes. Many years ago Lord Coke said that a preamble is a good means to find out the mean ing of a statute, and as a key to open the understanding thereof.
The basic facts which give rise to these appeals are not in dispute but there is one area of dispute based upon the proper inference to be drawn from those facts and that is whether the appellant ceased to be a resident of the United States.
The appellant was born in Ohio, one of the States of the United States of America. There is no question whatsoever that he is a citizen of that country and resided there until July 18, 1967.
He completed his early education there and then attended Case Western Reserve University in Ohio. He was employed at that University from 1953 to 1957 and during that period he was simultaneously working toward his doctor ate in philosophy which he achieved in 1956.
From 1957 to 1958 he worked as a consultant in a research institute in Cleveland, Ohio. From 1958 to 1961 he worked as a private consultant
with the Case Institute which was a ' separate entity technically but closely affiliated with the University.
The appellant's wife had been born in New- foundland, Canada, but moved to the United States prior to their marriage. In 1967 there were four children to the union, two of whom were teen-agers.
In 1961 the appellant and his family moved to Washington, D.C.
From 1961 to 1962 he taught at William & Mary University in Norfolk, Virginia.
From there he returned to Washington where he was employed by the Montgomery Board of Health and the Montgomery Board of Educa tion. While so employed he bought a house in Kensington, Maryland which he owned until 1964 when he moved to Wheaton, Maryland where the family lived in rented accommoda tion. All these places are in the area of Wash- ington, D.C.
Both of the appellant's parents are deceased. If my recollection of the evidence is correct, his only living relative is a brother who lives in the United States. The appellant and his brother were joint owners of a house which was rented to a third person. The appellant sold his interest in this property in 1968.
The appellant also bought property in the States of Florida and New Mexico, neither of which properties he has ever seen. I suspect that these properties may have been bought as a speculation from land developers.
While the appellant was in Washington, D.C. an employment listing in the University of Alberta at Edmonton, Alberta came to his atten tion. He wrote to the Chairman of the appropri ate department of the University on December 5, 1966. He received a reply from the Chairman in February 1967. This reply was to the effect that the Chairman would be in New York and suggested an interview with the appellant. That interview took place and formed the basis for further discussion. That further discussion took place when the appellant flew to Edmonton for that purpose. As a result a verbal agreement for
employment was reached. On March 27, 1967 a contract was received by the appellant from the University of Alberta while the appellant was living in Washington, D.C. On March 31, 1967 he signed that contract and returned it to the University.
In his letter of December 5, 1966 to the University the appellant indicated his interest in "re-locating to Canada", that he had been watching movements and trends in Canada for some time and that he had noticed differences that attracted him "personally and professional ly". In reciting his personal attributes he made reference to the fact that his wife was a Canadi- an and that most of his living relatives were in Canada. He mentioned that the family had bought a school bus which was converted into a "prairie schooner" in which the family had toured extensively in Eastern Canada. He also mentioned that all members of the family were camping, fishing and outdoor enthusiasts. He concluded this by letter stating that the family felt that "Canada is the new land of promise". Bearing in mind that this was a letter seeking employment and that the appellant, as a pros pective employee, would set out facts and cir cumstances which he considered might influ ence the employer in his favour, the letter may not be of great significance being in the nature of puffing. However, it is an indication of the appellant's thoughts and the nomadic way of his life, no doubt dictated by the appellant's occupation.
On the other hand, Mrs. Stickel gave evi dence that the move to Edmonton was dis cussed at a family conference. She, herself, was less than enthusiastic. She had no desire to return to Eastern Canada and she was unfamil iar with Western Canada. It was the consensus of the family, including the appellant, that they should give it a try for two years and remain open minded about the project.
The contract between the appellant and the University was for his employment as an associate professor in the Department of Edu cational Psychology in the Faculty of Educa-
tion, the effective date of appointment being July 1, 1967for a probationary period ending June 30, 1969, which I would point out is for a period of two years exactly.
The appellant moved to Edmonton, Alberta, with his family on July 18, 1967 to take up his duties under this appointment.
Prior to moving to Canada the appellant ter minated the lease on the premises occupied in the United States. Certain personal effects, which could not be conveniently moved to Canada, were left with his brother. The evi dence is not conclusive if this was an outright gift or whether the effects were to be kept for the appellant.
The appellant had a loan account which he closed out but continued payments for about eighteen months to discharge the outstanding balance. His checking and saving account was moved to Edmonton.
When the appellant first came to Edmonton he had difficulty in finding suitable accommo dation for rent. He eventually found accommo dation but after occupying it for a period the property was offered for sale. The appellant was left with the alternative of buying the prop erty or moving. The appellant moved. On March 27, 1968 he entered into a lease for another property for a period of five years supplemented by an option agreement, for a consideration of $2,000, to purchase and with an agreement for sale annexed, which might be exercised after February 15, 1973. The lease expired on March 31, 1973. The appellant's explanation was that he entered into these arrangements, i.e. a lease, an option and an agreement for sale, because his obligations thereunder could be transferred readily and the option sold.
At the expiration of his teaching contract with the University on June 30, 1969, the appel lant did not renew it. He was dissatisfied with the changes wrought over the two-year period. In his view the enrolment had become too great for satisfactory teaching. He had become disil lusioned and no longer wished to teach under those conditions.
The appellant decided to continue in two part time posts in Edmonton. He was employed as a consulting psychologist in a private clinic, The Cold Mountain Institute, and conducted semi nars in human relations.
From July 18, 1967 until he left Canada on March 9, 1970 he did not return to the United States except to attend professional conven tions and in the fall of 1969 for an interview about prospective employment in the State of Alaska. He received an offer of employment in January 1970 as a result of that interview which he accepted and left Canada in March 1970.
To recapitulate the salient facts in summary form, the appellant was a professor, he was a resident of the United States on July 18, 1967 on which date he came to Canada to teach at the University of Alberta. He taught at that University for a period of two years ending June 30, 1969. From June 30, 1969 to March 9, 1970, a period of slightly more than eight months, he remained in Canada and engaged in employment, other than teaching, for which he received remuneration.
While the appellant was engaged in teaching at the University of Alberta in the years 1967 and 1968 the administrative officer in charge of payroll operations deducted income tax and payments to the Canada Pension Plan, remitted the amounts so deducted to the Minister of National Revenue and issued T.4 slips therefor.
During the months of July to December 1967 a total of $1,804.33 was deducted from the salary of the appellant for income tax together with a total of $79.20 as Canada Pension Plan payments, making a total deduction of $1,- 883.53 for the 1967 year.
During the year 1968 income tax deductions from the appellant's salary totalled $3,819.54 and Canada Pension Plan deductions totalled $81, making a total of $3,900.54.
I might also add that deductions were also made from the appellant's salary in these two
years for contributions to a University Pension Plan.
The bursar's office, particularly the adminis trative officer in charge of payroll operations, was not aware of the Canada-U.S. Reciprocal Tax Convention and did not become aware of it until the matter was brought to the attention of the office in June 1968. In that month the Department of National Revenue, Taxation Division supplied copies of Information Bulletin No. 41, dated May 21, 1968 and published in the Canada Gazette of June 1, 1968, the subject of which bulletin is the exemption from income tax in Canada of professors and teachers from other countries.
It is now the practice of that office to obtain from a visiting professor a statement of exemp tion stating (1) the name of his home country, (2) the date he entered Canada, (3) that he came to Canada for the express purpose of teaching in this country, (4) that his intention is to leave Canada within 24 consecutive months from the date of his entry and (5) that he has not been allowed a tax exemption in respect of teaching income earned in Canada for any period prior to the date of entry indicated. This statement of exemption was drafted and designed in accord ance with the instructions in Bulletin 41.
The appellant did not complete such a state ment at any time for the very obvious reason that neither the bursar's office, nor the appel lant were aware of the tax treaty or Bulletin 41 until June 1968 and the spring of 1969 or poss ibly the summer of 1968 respectively.
The appellant did file tax returns with the appropriate authority of the United States in which he claimed "non-resident" status. He has paid no income tax to the United States on the income earned in Canada.
The appellant did not file income tax returns in Canada for the 1967 and 1968 taxation years until March 1970. Apparently the appellant filed two tax returns for each taxation year. The returns which bear the latter date do not claim tax exemption under the tax treaty but the returns which bear the earlier date do.
I do not attach significance to this added confusion because by notices of assessment dated April 14, 1970 and April 16, 1970, the Minister advised the appellant that he did not qualify for tax exemption "under Article 8A of the Income Tax Act [sic]" and that he was being assessed accordingly.
I might also add that while the appellant claimed tax exemption for all teaching income earned in Canada in 1967 he only claimed exemption on the teaching income earned by him to June 30 in the year 1968.
The appellant forthwith filed notices of objection. The Minister notified the appellant that he had been properly assessed under sec tion 5(1) of the Act and that the provisions of Article VIII A of the tax convention are not applicable. Hence the present appeals.
Counsel for the appellant submitted that a treaty must be interpreted so as to give effect to the rule of effectiveness and the rule of liberal interpretation. I fail to follow how the rule of effectiveness can mean any more than the obvi ous duty of the Court to give effect to the treaty. That duty is, as I conceive it, to ascer tain and give effect to the intention of the contracting states as expressed in the words used by them.
Similarly I find little help in the statement that a treaty shall receive a liberal or extensive construction rather than a strict one. The con sensus of all writers is that treaties are to be construed in the most liberal spirit provided however that the sense is not wrested from its plain and obvious meaning.
In my view the duty of the Court is to con strue a treaty as it would construe any other instrument public or private, that is to ascertain the true intent and meaning of the contracting states collected from the nature of the subject- matter and from the words employed by them in their context. In this I am assisted by the
preamble of this particular treaty which states that two of the overall aims are the avoidance of double taxation and the prevention of fiscal evasion in the case of income tax.
The clear and unambiguous language of sub sections (1) and (2) of section 2 of the Income Tax Act imposes a tax on the appellant, were it not for Article VIII A. Subsection (1) imposes a tax on every person resident in Canada at any time in the taxation year and subsection (2) imposes a tax on a person not resident in Canada on income earned in Canada. Accord ingly for the appellant to be exempt he must bring himself precisely within the four corners of Article VIII A.
The avowed purpose of Article VIII A in so far as it concerns the present appellant is to ensure relief from double taxation.
The appellant has not been subjected to tax in the United States on the remuneration earned by him for teaching in Canada. The appellant has filed returns in the United States on the basis that he was a non-resident of the United States. The revenue authorities of that State have categorized the appellant as a non-resident and he was accordingly informed that no tax was due to that jurisdiction on the money earned by him in Canada. This being so I fail to appreciate how the appellant falls within the general objective of the treaty which is to avoid double taxation. The appellant has not, as yet, been subjected to double taxation but there remains the possibility that he might be subject ed to tax in that jurisdiction as well.
Article XVI of the Convention provides that where a taxpayer shows proof that the action of the revenue authorities of one of the contract ing States has resulted in double taxation, then the taxpayer is entitled to lodge a claim with the State of which he is a citizen or resident. The competent authority of that State will then con sult with the corresponding authority of the other State to determine if the double taxation may be avoided.
In the present instance the appellant cannot resort to this procedure because he has paid no taxes in the United States on his teaching remu-
neration earned in Canada, nor has the United States sought to impose a tax on that amount as yet.
Therefore the condition precedent to the appellant invoking a determination of the avoid ance of double taxation does not exist because as yet there is no double taxation.
It therefore follows that I am obliged to determine if the appellant is exigible to tax in Canada and to do so I must determine if the appellant falls within the exemption contemplat ed by the language employed by the contracting parties in Article VIII A.
It was the further submission on behalf of the appellant that the Minister is estopped from taxing the appellant.
This contention is based upon Information Bulletin 41 issued by the Minister, particularly the text appearing under the heading "Transi- tional Rules". This is to the effect that where a teacher remains in Canada after the expiration of a 24-month period from the date of his arrival in Canada he will be subject to tax and to making Canada Pension Plan payments "only to the extent that such income was earned, after the end of the month in which the 24 month period expired."
The effect of this language in Information Bulletin No. 41 is that a teacher could come to Canada and teach for two years during which his remuneration would be tax exempt under Article VIII A, but if that teacher should remain in Canada to teach for a period in excess of two years then the remuneration earned during the first two years would continue to remain tax exempt but the remuneration earned by him in the third and subsequent years will be subject to tax.
It is the contention on behalf of the Minister that in order for the appellant to qualify for exemption under Article VIII A, the term of his visit to Canada must not endure beyond two years and the visit must be exclusively for the purpose of teaching.
The position taken by counsel for the appel lant is that the Minister is precluded from taking
such stand in the face of the express statements made in the Information Bulletin.
In support of his position counsel relies on the decision of the Tax Appeal Board in Smith v. M.N.R. 70 DTC 1594 and the decision of the Tax Review Board in Bowen v. M.N.R. [1972] C.T.C. 2174.
In Smith v. M.N.R. the appellant who was a professor came to Canada on September 9, 1966 with his family for the purpose of teaching at the University of Alberta. His teaching con tract was for a period of four years but evi dence was adduced and accepted by the Board that this was in error and the contract was in fact for two years only. Before the end of the two-year period, i.e. (September 1968), the appellant's family returned to England in May 1968. On June 18, 1968 an offer of renewal of his teaching contract for a further two years was made to the appellant under more advanta geous conditions. In July 1968 the appellant went to England to persuade his wife to return to Alberta for a further two years. The appel lant, accompanied by his family, returned to Canada in September 1968 to continue teaching for a further two years (a total of four years). The Board allowed the appeal on acceptance of the fact that it was the appellant's intention to teach in Canada for no more than two years. Obviously the Board based its decision on the appellant's intention.
If the ratio of this decision is, as it appears to be, that the professor's intention to teach in Canada for not more than two years is the determining factor, then I am forced to the conclusion that the Smith (supra) case was wrongly decided. In my view, the intention of a professor or teacher when he enters Canada has no relevance in the interpretation and applica tion of the pertinent articles of the Treaty.
In Bowen v. M.N.R. (supra) the appellant was an exchange teacher from New Zealand who taught in Canada for two years. At the end of that period the appellant had made all necessary arrangements to return to New Zealand. How-
ever, prior to that time the appellant learned of an excursion flight to Europe where the appel lant had relatives, but to take advantage of that flight, the appellant would be obliged to teach for a further 10 months beyond the two-year period. He therefore enquired of the District Taxation Office and was informed, in accord ance with the terms of Information Bulletin 41, that the policy of the Department was that where a teacher remained in Canada subsequent to the expiration of the 24-month period the teacher would not be subject to income tax and Canada Pension Plans on the income which had been exempt in the original two years. On the strength of this representation the appellant stayed on in his teaching post beyond the two- year period. He was assessed to income tax for the prior two-year period on the ground that Article X of the Canada-New Zealand Tax Agreement did not apply. The effect of Article X is similar to that of Article VIII A of the Canada-U.S. Treaty, although the language dif fers substantially.
The learned member of the Tax Review Board stated at page 2182:
... I have come firmly to the conclusion that it is not now open to the Minister to plead Article X of the Schedule to the Canada-New Zealand Income Tax Agreement to the exclusion of and without having due regard to Information Bulletin No. 41 which undoubtedly supports the appellant's position herein... .
There is no question that the appellant acted upon the representation contained in Informa tion Bulletin 41 and more particularly on the letter from the District Taxation Office, by altering his plans and thereby his position leav ing himself vulnerable to the assessment to income tax imposed by the Minister.
With due respect to the learned member of the Tax Review Board I cannot accept his state ment because, in my view, it is contrary to well established principles.
First Information Bulletin 41 is precisely what it is stated to be, and that is an informa tion bulletin issued by the Deputy Minister of the Department of National Revenue. The Deputy Minister does not have the power to legislate on this subject-matter delegated to him. In reality, this information bulletin is noth ing more than the Department's interpretation of Article VIII A of the Treaty for departmental purposes. It is also, in effect, a direction to employers of professors and teachers from other countries who are expected to work in Canada at the employer's institution for a period of two years or less to refrain from making deductions from the employee's remu neration for teaching for income tax and pen sion plan and remitting these deductions to the Department. Information Bulletin 41 is not a statute.
On the other hand, the Canada-U.S. Recipro cal Tax Convention was by statute approved and declared to have the force of law in Canada. It is therefore the domestic law of the land.
The position taken by counsel for the appel lant to the effect that the Minister is precluded from relying on the language of Article VIII A of the convention to the exclusion of and with out having regard to the interpretation implicit in Information Bulletin 41, is an invocation of the doctrine of estoppel.
In Woon v. M.N.R. [1951] Ex.C.R. 18 one of the grounds of appeal was that the Commission er had given a "ruling" that if the appellant followed a certain procedure tax would be imposed under a particular section of the Income War Tax Act. That procedure was fol lowed but the Minister assessed the appellant to a much greater tax under another section of the Act which was applicable. It was argued that the Minister was precluded from alleging that the particular section under which the assess ment was made was applicable because of the prior ruling of the Commissioner.
Mr. Justice Cameron, after a detailed and analytical review of the leading authorities, held that the Commissioner had no power to bind the
Minister by a ruling limiting tax action other than in accordance with the statute; that the assessment must be made pursuant to the terms of the statute and it is not open to the appellant to set up an estoppel to prevent the operation of the statute.
In M.N.R. v. Inland Industries Ltd. 72 DTC 6013, the respondent sought to deduct contribu tions made to pension plans in computing its income. The plans had been submitted to the department, and were approved and registered by it. Further, the respondent was advised by the Minister that contributions made to the plans with respect to past services of the employees would be deductible. Mr. Justice Pigeon, in delivering the unanimous judgment of the Supreme Court of Canada, held that it was an express requirement of the pertinent section of the Income Tax Act that there must be an obligation of the plan to its employees. To preclude the Minister from contending and establishing that such an obligation of the plan to its employees did not exist would nullify the provisions of the Act. He added that the approval of the Minister was not decisive of the existence of the statutory condition precedent to approval of the plan.
He effectively disposed of any question of an estoppel arising by stating (at page 6017): ... However, it seems clear to me that the Minister cannot be bound by any approval given when the conditions pre scribed by law were not met.
It therefore follows that if approval and regis tration given by the Minister to a pension plan does not give rise to estoppel then a fortiori an information bulletin cannot either.
In short, estoppel is subject to the one gener al rule that it cannot override the law of the land.
Therefore, the Minister is not precluded from relying on Article VIII A to the exclusion of the information bulletin.
Accordingly, I reiterate that the question to be determined is whether the appellant herein falls within the exemption contemplated by the language of Article VIII A.
The argument advanced on behalf of the Min ister was that in order for the appellant to be eligible for exemption by virtue of Article VIII A of the tax convention he must comply with the conditions set out immediately below.
(1) He must have been a resident of the United States at the time of entering Canada. In this respect Article VIII A is abundantly clear. The language is "A professor who is a resident of one of the Contracting States". The evidence established beyond doubt that the appellant was a professor and on the date he entered Canada he was a resident of the United States.
(2) He must retain his status as a resident of the United States throughout the period of his temporary visit to Canada. That is if the appellant meets the first qualification above enumerated that he continues to be a resident of the United States upon his entry to Canada but subsequently during the prescribed period of two years, ceases to be a resident of the United States then the appellant loses any right or privilege that he may otherwise have had to exemption from taxation in Canada by virtue of the tax convention. It was the fur ther submission on behalf of the Minister that on the basis of the objective criteria dis cussed in Thomson v. M.N.R. [1946] S.C.R. 209 and in Beament v. M.N.R. [1952] 2 S.C.R. 486 to determine if the respective appellants in those cases fell within the mean ing of the words, "residing", "resident" and "ordinarily resident" as used in the pertinent sections of the Income Tax Act there under review, it should be found as a fact that the appellant herein had ceased to be a resident of the United States. As Mr. Justice Cart- wright (as he then was) pointed out in the Beament (supra) case, the decision as to the place or places in which a person is resident must turn on the facts of the particular case.
(3) The period of the appellant's "temporary visit" must not exceed two years and the temporary visit must be exclusively for teach ing, in the appellant's case, at a university.
I propose to consider the submissions on behalf of the Minister in the reverse order to which they were presented and accordingly I turn to the third submission.
The key words, which I have emphasized, of Article VIII A are a professor who is resident of one of the contracting states "and who tem porarily visits the other contracting State for the purpose of teaching, for a period not exceeding two years," at a university shall be exempted by the State which he visits from tax on the remu neration for teaching for such period.
The introduction of commas before and after the phrase "for a period not exceeding two years" is a circumstance of importance. The phrase modifies the language which precedes it and is not limited to a modification of the words "for the purpose of teaching". The phrase also modifies the words "temporarily visits". This being so, it follows that the temporary visit is limited to a "period not exceeding two years". If the phrase "for a period of two years" were restricted to a modification of the phrase "for the purpose of teaching", which might be the case but for the insertion of the commas, then the word "temporarily" would be redundant and should be given no meaning. However, it is a cardinal rule of interpretation that every word used must be given a meaning where possible. Had the language been "visits for the purpose of temporarily teaching", then the duration of the visit would not be specifically limited. But such is not the case. The word "temporarily" is introduced before the word "visits" and modi fies that word. The words "temporarily visits" are modified by the words "for a period not exceeding two years".
Therefore, the temporary visit cannot endure beyond two years in order for the exemption to apply.
Then there is the further qualification that the nature or character of the visit must be "for the purpose of teaching".
It follows that in order to qualify for exemp tion by virtue of Article VIII A a professor or teacher who is resident of one of the contract ing states to the convention must meet a two fold test: (1) the duration of the temporary visit
must not be in excess of two years; and (2) the visit must be for the purpose of teaching.
If a professor or teacher fails in either aspect, then he is not within the exemption contemplat ed by Article VIII A.
The undisputed facts in the present appeals are that the appellant came to Canada for the purpose of teaching and accordingly meets one of the two tests. He taught for a period of two years but he extended his visit beyond that period, and earned income from employment other than teaching, so that he failed in the second aspect of the two-fold test above pro pounded in that his visit was in excess of two years.
In view of this conclusion, it is unnecessary for me to consider the other argument advanced on behalf of the Minister that the appellant must retain his status as a resident of the United States throughout the period of his tem porary visit to Canada and that, on the Minis ter's submission, the appellant had not done so.
For the foregoing reasons, the appeals are dismissed with costs.
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