Pratte,
J:—This
is
an
appeal
from
a
judgment
of
the
Trial
Division
dismissing
the
appellant’s
appeal
from
an
income
tax
assessment
for
the
1972
taxation
year,
made
under
subsection
48(1)
of
the
Income
Tax
Act.
Section
48
of
the
Income
Tax
Act
was
amended
in
1973
by
section
9
of
c
14
of
the
Statutes
of
Canada
1973-74
and
the
new
section
was
expressly
made
applicable
to
the
1972
taxation
year.
It
is
common
ground
that
the
new
section
48
supports
the
assessment.
However,
the
appellant
contends,
and
all
his
attacks
against
the
judgment
of
the
Trial
Division
rest
on
that
contention,
that
the
new
section
48
cannot
be
invoked
against
him
in
this
case
because
there
is
an
inconsistency
between
the
operation
of
the
new
section
48
and
article
VIII
of
the
Canada-United
States
Tax
Convention
(see
The
Canada-United
States
of
America
Tax
Convention
Act,
1943,
Statutes
of
Canada
1943,
c
21,
section
3).
That
contention
is,
in
my
view,
ill
founded.
Under
the
Convention
a
person,
who,
like
the
appellant,
has
become
a
resident
of
the
United
States,
is
not
taxable
in
Canada
by
reason
of
the
capital
gains
made
by
him
after
becoming
a
United
States
resident.
This
does
not
conflict,
in
my
view,
with
the
new
section
48
which
has
merely
the
effect
of
taxing
the
appellant
for
1972
on
the
fictitious
basis
that
he
is
deemed,
while
he
was
a
Canadian
resident,
to
have
made
certain
capital
gains.
In
effect,
the
appellant’s
contention
that
there
was
conflict
between
the
Convention
and
the
new
section
48
was
based
on
the
view
that
the
new
section
affected
vested
rights
that
the
appellant
had
acquired
under
the
old
section
48
and
the
Convention.
I
do
not
share
that
view.
Under
the
Convention
and
the
old
section
48
(as
the
appellant
interprets
it)*
the
appellant
had,
as
long
as
the
law
remained
unchanged,
the
right
not
to
be
taxed
in
respect
of
the
capital
gains
that
the
old
section
48
deemed
to
have
made.
The
appellant,
however,
did
not
have
the
right
to
be
protected
against
a
retroactive
change
in
the
legislation.
For
those
reasons,
I
would
dismiss
the
appeal
with
costs.
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