DUMOULIN,
J.:—At
all
material
times
and
until
December
29,
1964,
the
appellant
company
was
the
proprietor
of
Northern
Building,
a
large
office
renting
edifice
situated
at
1600
Dorchester
Boulevard
West,
Montreal,
Quebec.
For
the
1962
fiscal
year,
a
tax
in
the
sum
of
$35,477.44
was
levied
by
the
respondent
in
respect
of
Monart’s
income,
for
reasons
to
appear
below.
This
appeal
is
from
the
Minister’s
assessment.
In
the
regular
course
of
its
business,
the
company
owning
Northern
Building
had,
as
lessees
of
two
floors,
the
sixteenth
and
seventeenth,
Canadian
Chemical
&
Cellulose
Company
Limited
(hereafter
shortened
to
Chemeell),
with
a
ten-year
lease
(May
1,
1958,
until
April
30,
1968),
at
a
rental
of
$97,095
per
annum,
later
increased
by
supplementary
agreement
to
$110,041.
A
copy
of
this
lease
is
included
in
the
transcript
of
documentary
evidence,
forming
part
of
the
official
record.
Under
the
caption
of
“Other
Conditions’’,
page
11,
clause
1,
the
lessee
is
entitled
to
transfer
its
right
or
sublet
any
portion
of
the
leased
premises
with
the
lessor’s
consent
in
writing,
‘‘which
consent
shall
not
unreasonably
be
withheld’’;
the
lessee,
of
course,
‘‘to
remain
responsible
for
the
obligations
of
the
Lease
including
the
payment
of
rental
hereunder’’.
“Late
in
1961,
Appellant
was
advised
that
Chemcell
would
vacate
the
leased
premises
on
May
1,
1962”,
states
Section
3
of
the
Notice
of
Appeal,
‘‘and
that
its
obligations
for
the
balance
of
the
term
of
its
lease
would
be
assumed
by
Dorchester
Commerce
Realty
Limited,
owners
of
the
new
Canadian
Imperial
Bank
of
Commerce
Building
which
was
under
construction
on
Dorchester
Boulevard
’
’.
Meanwhile
certain
developments
had
occurred
which,
among
several
others,
are
set
forth
in
the
parties’
Agreed
Statement
of
Facts,
filed
May
1,
1967,
and
from
which
I
quote
the
undergoing
:
16.
.
.
.
the
Appellant
received
from
Dorchester
Commerce
a
letter
dated
November
1st,
1961,
in
which
the
latter
made
a
further
offer
to
pay
the
sum
of
$75,000
(two
previous
offers
of,
respectively,
$50,000
and
$55,000
had
been
refused)
if
the
Appellant
would
consent
to
the
cancellation
of
both
of
the
aforementioned
leases.
(With
the
approval
of
Chemeell,
the
appellant,
on
December
19,
1958,
leased
to
Pigott
Construction
Company
Ltd.,
‘‘a
portion
of
the
sixteenth
floor,
comprising
approximately
3,912
square
feet
in
the
Northern
Building”.)
These
compensatory
terms
proving
acceptable
to
the
lessor,
owner
of
Northern
Building,
a
Memorandum
of
Agreement
was
entered
into
on
April
27,
1962,
between
Monart
Corporation,
Dorchester
Commerce
Realty
Ltd.,
Chemcell
and
Pigott
Construction
Company,
in
virtue
whereof
‘‘Dorchester
Commerce
undertook
to
pay
to
the
Appellant
not
later
than
April
30th,
1962,
the
sum
of
$75,000.00
in
consideration
of
the
termination
of
both
the
Chemcell
and
Pigott
leases,
effective
April
30th,
1962
or
on
such
subsequent
date
not
later
than
May
6th,
1962
on
which
the
leased
premises
were
actually
vacated
by
the
said
lessees’’
(cf.
Agreed
Statement
of
Facts,
para.
19).
It
was
further
stipulated
(para.
20),
in
order
to
prevent
the
loss
of
any
fraction
of
the
rental
price,
that
‘‘.
.
.
Chemeell
and
Pigott
remained
liable
for
rent
for
the
time
they
occupied
their
respective
premises
beyond
April
30th,
1962
but
not
later
than
May
6th,
1962,
calculated
on
a
pro
rata
basis”
(italics
in
text).
On
April
30,
1962,
Monart
Corporation
duly
received
from
Dorchester
Commerce
the
sum
of
$75,000
(para.
21),
‘‘in
full
and
final
settlement
of
all
claims
of
the
Appellant
against
Chem-
cell
and
Pigott
by
reason
of
the
termination
of
their
respective
leases
on
or
before
May
6th,
1962”
(para.
18).
When
thus
terminated,
“the
Chemcell
and
Pigott
leases
had
approximately
6
years
and
one
year
to
run,
respectively’’
(para.
22),
but
with
the
express
reservation
that
‘‘the
premises
occupied
by
Pigott
in
the
Northern
Building
would
have
reverted
on
April
30th,
1963
to
Chemcell
under
the
latter’s
lease
with
the
Appellant
until
the
expiry
thereof,
on
April
30th,
1968”
(para.
23).
Subjectively
viewed,
as
of
April
27,
1962,
date
of
the
cancellation
indenture,
the
situation
consequent
thereto
effectively
meant
that,
in
consideration
of
a
$75,000
lump
payment,
the
lessor
gave
up
its
right
to
six
annual
rentals
of
$110,041
each,
a
gross
total
receipt
of
$660,246.
Objectively,
on
the
other
hand,
the
property
owner
could
let
anew
those
vacated
premises,
assuming,
however,
the
adverse
chances
of
delays,
lower
rents
and,
possibly
also,
less
desirable
tenants.
Under
such
conditions,
how,
then,
should
this
heavy
“forfeit”
be
looked
upon
in
the
eyes
of
our
fiscal
law?
In
paragraphs
4
and
5
of
its
Notice
of
Appeal,
Monart
Corporation
explains
that,
in
the
event
of
a
continuation
of
the
sub-lease
by
Dorchester
Commerce
Realty
Limited,
a
competitor,
4,
Appellant
had
reason
to
fear
that
the
premises
would
either
remain
vacant
or
substantially
vacant
for
the
balance
of
the
term
of
the
lease
or
that
the
premises
would
be
sub-let
to
small
tenants,
of
any
class
of
business,
on
short-term
leases
at
inferior
rentals
inasmuch
as
any
first-class
tenants
for
larger
quarters
would
inevitably
be
directed
by
Dorchester
Commerce
Realty
Limited
to
its
own
building
project.
5.
The
Appellant
was
accordingly
faced
with
the
prospect
of
suffering
a
substantial
diminution
in
the
real
value
of
its
building
as
a
fixed
asset,
as
well
as
in
the
realizable
market
value
of
the
building
as
a
capital
asset.
With,
also
added,
these
concluding
enunciations
of
fact
and
propositions
of
law
outlined
in
paragraphs
6
and
9
of
the
Notice
of
Appeal
:
6.
Upon
receipt
of
an
unsolicited
offer
from
Dorchester
Commerce
Realty
Limited,
Appellant
accepted
$75,000.00
in
lieu
of
damages
both
for
the
relinquishment
of
a
capital
asset
(the
lease)
as
well
as
for
the
protection
of
its
existing
capital
assets.
9.
The
aggregate
of
the
Appellant’s
rights
in
respect
of
the
unexpired
term
of
the
lease
constituted
“property”
within
the
mean-
ing
of
section
139(1)
(ag)
of
the
Income
Tax
Act,
and
were
thus
rights
of
a
capital
nature.
Previously,
the
appellant
had
stated
that
the
compensation
received
did
not
constitute
additional
rental
or
other
income
or
profit
from
a
business
or
property
within
the
meaning
of
Sections
3(a),
(b)
and
4
of
the
Act,
‘‘nor
an
amount
received
in
substitution
for,
or
in
lieu
of,
such
income
or
profits”.
It
could
go
without
saying
that
a
diametrically
opposite
view
of
the
matter
was
taken
by
respondent,
submitting
in
his
Reply,
that
the
amount
of
$75,000
‘‘was
received
.
.
.
from
Dorchester
Commerce
Realty
Limited
as
rent
or
in
lieu
of
rent
in
respect
of
the
leasing
of
certain
premises
in
the
Northern
Building
.
.
.
and
is
income
from
property
by
virtue
of
Sections
3
and
4
of
the
Income
Tax
Act’’,
and,
again,
that
the
amount
received
by
the
appellant
‘‘is
in
the
nature
of
profit
derived
from
a
property
or
a
business
of
the
Appellant
within
the
purview
of
Section
4
of
the
Income
Tax
Act’’
(paragraphs
10
and
11
of
the
Reply).
Before
dealing
with
the
pertinent
law,
certain
facts
should
be
clarified.
Arthur
Rudnikoff,
president
of
Monart
Corporation
in
1962,
testified
at
the
trial.
After
stressing
those
several
fears
and
apprehensions
he
entertained
as
the
lessor’s
chief
executive
upon
cancellation
of
Chemeell’s
lease,
a
practical
repetition
of
paragraphs
4
and
5
of
the
Notice
of
Appeal,
the
deponent
ended
his
testimony
by
asserting
“that,
after
Chemcell
(and
Pigott)
vacated
(their)
locals,
this
space
was
unoccupied
during
three
months,
from
May
6
until
mid-July;
no
rent
being
derived
by
Northern
Building
(i.e.
Monart
Corporation)
during
that
period”.
Regarding
a
loss
of
rentals
for
slightly
less
than
three
months,
there
can
be
no
doubt,
which
is
not
at
all
the
case
as
regards
Mr.
Rudnikoff’s
other
misgivings;
of
this,
ample
proof
is
forthcoming.
In
the
file
of
documentary
evidence,
starting
on
page
51,
appears
an
indenture
of
lease,
dated
May
23,
1962,
between
Monart
Corporation
and
The
Bell
Telephone
Company
of
Canada
(already
an
occupier
of
office
space
in
Northern
Building)
whereby,
and
I
now
revert
to
paragraph
24
of
the
Agreed
Statement
of
Facts
:
24.
.
.
.
of
the
total
area
of
25,892
square
feet
(about
one-tenth
of
the
Northern
Building’s
entire
footage)
previously
occupied
by
Chemcell
and
Pigott
under
their
respective
leases,
.
.
.
the
Appellant
leased
approximately
24,900
square
feet
to
the
Bell
Telephone
Company
of
Canada,
as
follows:
(a)
approximately
21,471
square
feet
.
.
.
by
Indenture
of
Lease
dated
May
28rd,
1962,
for
a
term
of
10
years
commencing
May
1st,
1962,
and
terminating
April
30th,
1972,
at
an
annual
rental
of
$91,251.75;
and
(b)
approximately
3,429
square
feet
.
.
.
(previously
occupied
by
Pigott)
.
.
.
for
a
similar
term
of
10
years
commencing
May
1st,
1962,
and
terminating
April
30th,
1972,
at
an
annual
rental
of
$14,573.25.
In
the
copy
of
this
indenture
(cf.
file
of
documentary
evidence,
page
53),
it
is
agreed
that
‘‘rental
will
commence
to
accrue
and
be
applicable
in
respect
of
the
premises
only
from
and
including
the
26th
day
of
July,
Nineteen
hundred
and
sixty-two
.
.
.’’.
Rudnikoff
having
testified
that
the
premises,
after
renovations
and
repairs,
were
occupied
by
the
Bell
Telephone
Company
on
or
about
mid-July,
1962,
a
three-month
loss
of
rent
by
appellant
does
not
appear
exaggerated.
The
pecuniary
consequences
of
the
latter
lease,
at
an
annual
rent
of
$105,825
(ie.
$91,251.75
plus
$14,573.25)
as
against
a
former
yield
of
$110,041,
meant
a
yearly
revenue
shrinkage
of
$4,216
which,
repeated
during
the
six
remianing
years
Chem-
cell’s
occupation
would
otherwise
have
continued,
amounted
to
$25,296.
To
this
income
reduction
should
be
joined
three
months’
loss
of
rent
which,
computed
in
accordance
with
Chemcell’s
monthly
rate
of
$9,170
($110,041
=
12),
points
to
a
further
deficit
of
$27,510.
That
the
compensating
payment
of
$75,000
was
intended
in
appellant’s
mind
to
take
care
of
such
contingencies
seems
hard
to
deny
and,
furthermore,
these
is
of
record
Rudnikoff’s
admission
to
this
effect
at
pages
34
and
35
of
his
Examination
on
Discovery,
referred
to
at
the
hearing
by
respondent’s
counsel;
quotation
:
Page
34
:
Mr.
GARON,
for
the
Minister:
Q.
But,
on
what
basis
was
this
amount
of
$75,000
computed?
A.
We
knew
that
we
would
have
to
lose
a
certain
amount
of
rent
because
we
had
no
tenant
at
that
particular
moment,
and
we
figured
how
long
will
it
take.
And
we
knew
the
rent
also
was
approximately
$110,000
a
year,
round
figures.
Well,
during
the
time
when
the
tenant
does
move,
and
we
have
a
certain
amount
of
renovation
to
do.
That
would
take
maybe
several
months
to
put
into
shape
again,
and
we
had
no
tenant
at
that
particular
moment,
so
we
just
hoped
and
we
took
the
chance.
Page
35
:
Q.
And
what
was
your
idea
about
the
amount
of
rent
that
you
would
lose
in
terms
of
months?
A.
We
had
figured
we
would
lose
between
six
to
nine
months
.
.
.
At
page
61,
the
deponent
asserts:
‘‘
Yes,
it
took
from
three
to
five
months
to
rent
the
premises
.
.
.
this
was
a
normal
period
under
the
circumstances’’.
We
saw
that
on
May
28,
1962,
new
tenants,
the
Bell
Telephone
Co.
were
found
for
the
vacated
space,
a
fortunate
result
Rud-
nikoff
could,
presumably,
not
foresee
when,
on
April
27,
same
year,
Chemcell’s
lease
was
cancelled.
The
irrebuttable
fact
remains,
however,
that
this
$75,000
indemnity
was
closely
aligned
with
a
possible
rental
loss
of
some
six
to
nine
months.
Appellant’s
counsel,
both
in
his
written
proceedings
and
plea
at
trial,
insisted
that
the
relinquished
lease
was
a
capital
asset;
‘‘that
the
aggregate
of
the
Appellant’s
rights
in
respect
of
the
unexpired
term
of
the
lease
constituted
‘property’
within
the
meaning
of
Section
139(1)
(ag)
of
the
Income
Tax
Act,
and
were
thus
rights
of
a
capital
nature’’.
Such
a
proposition
of
law
cannot,
I
believe,
me
readily
countenanced.
The
personal
nature
of
a
lease
erga
the
lessee
suffers
no
doubt
in
civil
law
and
I
was
proffered
no
reason
to
hold
its
legal
classification
differed
erga
the
lessor.
Albeit
commenting
more
particularly
upon
Article
1612
of
the
Civil
Code,
Mignault*
expressly
refers
to
this
matter,
setting
a
tenant’s
right
well
within
the
personal
category;
the
authoritative
commentator
therefore
writes
(page
255)
:
Il
faut
remarquer
que
ce
n’est
là
qu’une
application
de
l’article
1065,
car
le
droit
du
locataire
n’étant
que
personnel
et
mobilier,
l’action
du
locataire
ne
peut
avoir
un
caractère
de
réalité.
(Italics
mine
throughout.)
Next,
on
page
359,
we
read:
et
lorsque
je
dis
que
le
locataire
a
droit
à
la
possession
si
son
bail
a
été
précédemment
enregistré,
je
ne
veux
pas
reconnaître
qu’il
y
ait
un
droit
réel,
un
jus
in
re
.
.
.
The
Court
is
strongly
of
the
opinion
that
a
deed
of
lease
is
not
a
capital
asset
or
a
real
right
but
merely
a
personal
one.
Appellant’s
learned
counsel
attached
special
insistence,
as
an
applicable
precedent,
to
the
case
of
Harold
F.
Puder
v.
M.N.R.,
30
Tax
A.B.C.
219,
the
salient
facts
of
which
are
thus
summarized
by
Mr.
Justice
Thurlow:
‘‘The
issue
in
the
appeal
is
the
liability
of
the
appellant
for
income
tax
in
respect
of
a
sum
of
$4,161.15
received
by
him
(the
mortgagee)
in
addition
to
the
principal
sum
on
the
release
before
maturity
of
a
mortgage
which
he
held’’.
This
mortgage,
with
many
years
to
go
before
its
terminal
date,
nevertheless
provided
for
an
option
of
repayment
after
three
years
of
the
balance
of
principal
and
interest
to
date
together
with
a
bonus
of
3
months’
interest.
When
the
mortgage
had
run
but
15
months
(instead
of
36)
‘
'
the
mortgagor
on
arranging
a
sale
of
the
..
.
property
requested
a
release
of
the
mortgage’’.
This
was
acceded
to
on
condition
that
he
should
pay
‘‘the
unearned
interest
for
that
portion
of
the
three
year
period
remaining
as
a
bonus,
plus
a
further
bonus
of
three
months
interest’’,
amounting
to
$4,161.15
and
$516.99
respectively.
To
the
learned
judge,
the
above
prepayments
appeared:
to
have
been
simply
a
sum
received
in
respect
of
the
relinquishment
by
the
appellant
of
his
right
to
insist
on
payment
of
the
mortgage
according
to
its
tenor
which,
in
my
opinion,
was
not
a
right
of
an
income
nature
.
.
.
Moreover,
I
do
not
think
that
the
fact
that
the
appellant
exacted
the
amount
in
question
as
a
condition
of
giving
up
his
right
can
affect
the
amount
with
an
income
quality
or
serve
or
characterize
it
as
anything
more
than
an
amount
received
in
exchange
for
a
right
of
a
capital
nature
by
one
not
engaged
in
a
business
of
making
investments
for
the
purpose
of
securing
amounts
of
that
kind.
For
the
present
requirements,
I
need
retain
only
the
italicized
observation
that
Harold
F.
Puder
was
not
engaged
in
the
business
of
mortgage
investments,
while
the
actual
appellant
is
a
corporation
whose
‘‘raison
d’être”,
and
sole
pursuit,
consist
in
the
business
of
renting
office
accommodation;
an
essential
difference
due
to
which
the
aforementioned
precedent
does
not
apply.
The
case
of
M.N.R.
v.
Farb
Investments
Limited,
[1959]
C.T.C.
113
at
117
and
118,
decided
by
Mr.
Justice
Cameron,
formerly
of
our
Court,
and
relied
upon
by
respondent’s
able
counsel,
bears
much
closer
resemblance
to
the
instant
suit.
Since
the
material
factors
in
re
Farb
Investments
are
rather
involved,
being
a
repetition
of
those
lease-juggling
acts,
between
an
oil
company
and
one
of
its
thinly
masked
service
station
owners
and
clients
or,
more
exactly,
quasi-agents,
I
had
better
cite
them
at
length:
The
respondent
company
in
March
1954
leased
its
property
to
F
who
operated
thereon
two
businesses,
one
a
service
station,
the
other
a
car
wash.
The
lease
was
for
five
years
at
monthly
rental
of
$1,200
and
payment
of
all
taxes,
as
well
as
insurance
premiums
on.
the
buildings
on
the
lot.
Subsequently
an
agreement
was
entered
into
by
the
respondent,
F
and
Imperial
Oil
Ltd.
whereby
F
surrendered
his
lease
to
the
respondent
who
thereupon
leased
the
service
station
to
the
oil
company
for
a
five-year
term
at
an
annual
rental
of
$6,000
and
the
latter
thereupon
sublet
the
property
to
F
for
the
full
term
less
one
day
at
the
same
rental,
the
respondent
consenting.
Pursuant
to
the
agreement,
and
upon
the
surrender
of
the
lease
by
F
to
the
respondent
and
its
acceptance
thereof,
the
oil
company
paid
the
respondent
$17,000
“as
a
consideration
for
such
acceptance
of
surrender”.
At
the
same
time
a
new
lease
for
a
five-
year
term
was
granted
by
the
respondent
to
F
of
that
part
of
the
property
on
which
he
had
carried
on
his
car
wash
business,
at
a
monthly
rental
of
$700
and
payment
of
taxes
and
insurance
premiums
thereon.
In
re-assessing
the
respondent
for
its
1956
taxation
year
the
Minister
added
$17,000
to
its
declared
income,
describing
that
item
as
“surrender
of
lease”.
The
respondent’s
appeal
from
the
assessment
was
allowed
by
the
Tax
Appeal
Board
and
the
Minister
appealed
from
its
decision.
I
now
turn
to
Cameron,
J.’s
textual
pronouncement
at
page
117:
By
the
terms
of
the
lease
made
by
the
respondent
to
Saul
Farb
on
March
1,
1954
(Exhibit
2),
the
lessee
was
required
to
pay
a
monthly
rental
of
$1,200
for
the
whole
of
the
property,
and,
in
addition
“(b)
the
full
amount
of
all
taxes,
local
improvement
rates
and
building
insurance
premiums
charged
against
the
said
lessor
in
respect
of
the
said
demised
premises
or
the
buildings
standing
thereon.”
By
the
terms
of
the
lease
from
the
respondent
to
Imperial
Oil
dated
November
1,
1954,
however,
the
oil
company
was
required
only
to
pay
the
agreed
cash
rental
of
$6,000
per
year
and
was
not
required
to
pay
either
the
taxes
on
the
service
station
or
the
building
insurance
premiums,
which
taxes
and
premiums
consequently
fell
to
be
paid
for
the
full
term
of
five
years
by
the
respondent.
In
the
sublease
from
Imperial
Oil
and
Saul
Farb,
the
latter
was
again
not
required
to
pay
such
taxes
or
insurance
premiums.
However,
by
the
terms
of
the
new
lease
from
the
respondent
to
Saul
Farb,
on
the
car
wash
portion
of
the
property,
the
lessee
was
required
to
pay
such
taxes
and
insurance
premiums.
As
a
result
of
such
changes,
the
respondent,
which
had
previously
not
been
liable
for
payment
of
taxes
and
building
insurance
premiums
on
the
service
station,
was
now
obligated
to
pay
them.
There
is
no
evidence
before
me
as
to
what
these
would
amount
to
over
a
period
of
five
years,
but
there
can
be
no
question
that
they
would
be
very
substantial.
The
minute
book
of
the
respondent
shows
that
the
whole
of
the
property
was
sold
to
the
respondent
in
February,
1954
for
a
consideration
of
approximately
$135,000.
The
agreed
rental
of
the
service
station
situated
on
a
corner
would
also
indicate
that
the
taxes
and
insurance
premiums
would
be
very
large.
Now
it
cannot
be
assumed
that
the
respondent
would
voluntarily
and
without
consideration
forego
the
indemnification
which
it
had
previously
had
in
regard
to
taxes
and
insurance
premiums
on.
the
service
station.
I
think
there
is
a
clear
inference
from
the
terms
of
the
documents
that
the
payment
of
$17,000
was
closely
related
to
the
surrender
of
that
right,
more
particularly
as
no
evidence
was
given
in
explanation
of
why
that
right
was
surrendered.
For
the
reasons
preceding,
the
eminent.
jurist
held
that:
.
.
.
In
the
absence
of
any
explanation,
I
must
infer
that
the
agreed
amount
of
cash
to
be
paid,
namely,
$17,000,
either
in
whole
or
in
some
unascertained
part,
took
the
place
of
the
right
which
was
surrendered
by
the
respondent.
That
being
so,
it
was
merely
receiving
in
advance
the
amount
of
taxes
and
insurance
premiums
for
a
period
of
five
years.
In
view
of
that
conclusion,
it
follows,
I
think,
that
the
sum
so
received
was
nothing
more
than
an
additional
payment
of
rent
beyond
the
stipulated
annual
sum
of
$6,000
and
must
be
brought
into
account
in
computing
the
respondent’s
taxable
income.
The
appeal
was
consequently
allowed
by
Mr.
Justice
Cameron.
The
logical
divergence
is
slight
between
“an
additional
payment
of
rent
beyond
the
stipulated
annual
sum
of
$6,000’’
in
view
of
future
taxes
and
insurance
premiums
on
commercial
premises,
and
a
compensation
of
$75,000
in
lieu
of
eventual
loss
of
rents
also
in
connection
with
commercially
exploited
premises.
I
believe
the
points
at
issue
in
the
cause
were
correctly
set
down
by
Mr.
Guilbault,
one
of
the
respondent’s
attorneys,
who
submitted
that:
.
.
in
the
present
case,
it
is
our
contention
that:
Firstly,
the
amount
received
by
the
Appellant
was
paid
to
it
for
damages
suffered
or
to
be
suffered
as
the
result
of
the
premature
termination
of
the
lease,
and
that
the
termination
can
be
considered
as
a
normal
incident
in
the
activities
of
a
landlord
renting
properties.
Secondly,
that
the
rights
or
benefits
surrendered
by
the
Appellant
do
not
represent
a
loss
of
an
enduring
asset,
and
that
its
structure
[namely,
Monart
Corporation’s
mode
of
conducting
business]
was
so
fashioned
as
to
absorb
the
shock
[bearing
upon
only
one
tenth
of
its
rentable
space]
as
one
of
the
normal
incidents
to
be
looked
for,
and
.
.
.
it
must
be
noted
that
in
the
lease
there
was
a
clause
where
a
lessee
could
leave
the
premises,
and
it
was
stated
by
Mr.
Rudnikoff
that
he
could
not
oppose
that.
This
is
one
of
the
things
that
the
corporation
had
looked
for.
Thirdly,
that
the
compensation
received
(is
in
substitution
for)
future
profits
surrendered.
[cf.
Argument
for
Respondent—Partial
Transcript,
pages
3
and
4.]
Irrefutable
evidence
indicates
that
Monart
Corporation,
owner
of
an
extensive
office-renting
property,
as
said
above,
was
uniquely
engaged
in
carrying
on
the
business
inherent
to
these
pursuits
and,
inasmuch,
cannot
escape
the
purview
of
Sections
3,
4
and
139,
subsections
(l)(e),
(ac),
(ag)
and
(av)
of
the
Income
Tax
Act,
all
of
them
so
well
known
texts
it
would
be
superfluous
to
quote
them.
I
must
therefore
conclude
that
the
respondent’s
assessment
of
the
appellant’s
income
for
the
1962
taxation
year
was
levied
according
to
law,
since
the
sum
of
$75,000
paid
to
appellant
by
Dorchester
Commerce
Realty
Company
was
in
lieu
of
future
rent
in
respect
of
the
demised
premises
in
Northern
Building,
and
was
also
in
the
nature
of
profit
derived
from
a
property
or
a
business
of
the
appellant.
Consequently
this
appeal
is
dismissed
and
the
respondent
entitled
to
his
costs
after
taxation.
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