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Citation: 2004TCC363
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Date: 20040512
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Docket: 2002-2555(IT)G
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BETWEEN:
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MICHAEL GRAY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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Docket: 2002-2557(IT)G
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AND BETWEEN:
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ELLEN GRAY,
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Appellant,
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and
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HER MAJESTY THE QUEEN,
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Respondent.
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REASONS FOR JUDGMENT
Beaubier,
J.
[1] These
appeals pursuant to the General Procedure were heard together on common
evidence at Prince George, British Columbia on May 4, 2004. Michael Gray was
the only witness.
[2] At
the outset, the Respondent's counsel filed a copy of a Request to Admit which
was admitted by the Appellants. Paragraphs 1 to 3 thereof read:
1. There is no
minimum lot size for land located in the Agricultural Land Reserve (the
"ALR") in the Province of British Columbia, in which the property
described as NW 1/4 DL 341 CR4, Except Plan 8955 and Plan 9387 purchased by the
Appellant and his spouse in 1976 (the "Property"), is located.
2. With respect
to applications for subdivision of land located in the ALR (including the
Property), the decision whether an application will be granted is made by the
Agricultural Land Commission of the Province of British Columbia.
3. The process
of obtaining permission to subdivide land located in the ALR (including the
Property) is as follows:
a) ALR
applications are first submitted to the Regional District, which checks the
application for completeness and writes a report on the application;
b) The
Application is then referred to the local Advisory Planning Commission and the
Ministry of Agriculture for comment;
c) The Planning
Department also comments on the application and presents the application to the
Board of Directors;
d) The Board of
Directors makes a recommendation as to whether the application should be
denied, approved or approved with conditions;
e) The Planning
Department then forwards all documents to the Agricultural Land Commission;
f) The final
decision on an application is made by a panel of three Commissioners of the Agricultural
Land Commission.
[3] Paragraphs
4 to 13 of the Reply to the Notice of Appeal of Michael Gray outline the
matters in dispute. They read:
4. With respect
to paragraph 4 of the Notice of Appeal, he admits that the property described
by the Appellant as "Farm Land" is situated within the British
Columbia Agricultural Land Reserve, but he says that it can be subdivided under
local regulations.
5. With respect
to paragraph 12 of the Notice of Appeal, he admits that the Appellant reported
gross revenues as set out, but further says that the Appellant reported the
following:
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Gross Farm Revenue
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Net Farm Income (Loss)
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Employment Income
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1985
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$1,155.00
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($1,381.21)
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$35,767.80
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1986
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1,464.03
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(1,006.15)
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35,982.68
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1987
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1,012.86
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(1,012.86)
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13,543.04
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1988
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641.00
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(612.97)
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44,858.24
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1989
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1,060.00
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Nil
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31,490.02
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He also says that the hay proceeds
were the Appellant's crop share from renting the Property to a neighbouring
farmer.
6. The Minister
of National Revenue (the "Minister") initially assessed the Appellant
for the 1998 taxation year by Notice dated May 13, 1999.
7. In computing
income for the 1998 taxation year, the Appellant reported a taxable gain of
$90,701 on a disposition of qualified farm property and claimed a corresponding
capital gains exemption.
8. The Minister
reassessed the Appellant for the 1998 taxation year by Notice dated October 29,
2001, disallowing the capital gains exemption and increasing the Appellant's
taxable capital gain to $91,149.
9. In so
reassessing the Appellant, the Minister relied on the following assumptions:
a) The facts
stated and admitted above;
b) In 1977, the
Appellant and his spouse, Ellen Gray, purchased 141.23 acres of land located at
NW 1/4 DL 341, Except Plan 8955 and Plan 9387 (the "Property");
c) At the time
the Appellant and Ellen Gray purchased the Property, they planned to use the
Property as their residence;
d) The Property
contains a 1 1/2 story single family dwelling that the Appellant and his family
occupied as their residence (the "Dwelling");
e) The Property
is located in the British Columbia Agricultural Land Reserve, but no zoning or
land use has been assigned to the Property because of its rural nature;
f) Subdivision
of the Property is permitted;
g) That part of
the Property exceeding 1 acre contiguous to the Dwelling cannot reasonably be
regarded as contributing to the use and enjoyment of the Dwelling as a
residence;
h) Over the
period of ownership, the Appellant and his spouse have used the Property for a
recreational area for their children, recreational farming and the purpose of
earning crop shares from renting out portions of the Property to neighbouring
farmers;
i) Except for
the 1989 taxation year, the Appellant and her (sic) spouse rented out
the farmed portion of the Property with the rental payment to be 1/3 of the
renter's resulting hay crop;
j) At no time
did the Appellant and his spouse principally use the Property in the course of
carrying on a business of farming;
k) Revenue from
farming reported by the Appellant in respect of the 1998 taxation year was in
respect of a crop share received as a result of renting part of the Property to
a neighbouring farmer who farmed the Property;
l) In 1998, the
Appellant and his spouse disposed of certain timber located on the Property;
m) The Appellant
and his spouse received consideration of $330,787 and incurred outlays and
expenses of $87,723, for a total gain of $243,064 on the disposition of the
timber;
n) the
Appellant's share of the gain in respect of the disposition of the timber was
$121,532 and his taxable capital gain was $91,149.
B. ISSUES TO BE
DECIDED
10. The issues are
whether:
a) the Appellant
is entitled to a capital gains exemption with respect the disposition of the
timber;
b) the timber
formed part of the principal residence of the Appellant.
C. STATUTORY
PROVISIONS RELIED ON
11. He relies on
sections 3, 9, 54, 110.6, paragraphs 38(a), 30(1)(a), 40(1)(a), 40(2)(b) and
(c) of the Income Tax Act, R.S.C. 1985, c. 1 (5th Supp.), as amended
(the "Act").
D. GROUNDS RELIED
ON AND RELIEF SOUGHT
12. He
respectfully submits that the Appellant is not entitled to a capital gains
exemption in respect of the gain realized on the disposition of timber for the
reasons that:
a) The property
is not a "qualified farm property" within the meaning of section
110.6 of the Act for the reason that neither the Appellant, nor the Appellant's
spouse, at any time used the Property principally in the course of carrying on
the business of farming; and
b) Further, any
farming activity carried on by the Appellant and his spouse on the Property did
not constitute carrying on the business of farming, as it was either
recreational farming or merely the receipt of crop shares in respect of the
rental of the Property.
13. He submits
that the Appellant is not entitled to the principal residence exemption in
respect of the gain realized on the disposition of the timber as neither the
timber nor the land on which it was located can reasonably be regarded as
contributing to the use and enjoyment of the Dwelling as a residence.
He requests that the
appeal be dismissed with costs.
[4] Assumptions
13(c), (d), (e), (f), (k), (l), (m) and (n) were not refuted.
[5] Respecting
the assumptions, in particular:
(b) The land was
purchased in 1976 as 150 acres. Pursuant to the vendor's wishes, the Appellants
undertook to and sold and subdivided out of the 150 acres, for $1.00 each, a
parcel to the Mennonite Church and a squatter's home site to Mr. Schmidt,
leaving 141.23 acres in the Appellants' names by about the end of 1977.
(c) Part of the
contest before the Court is whether the Appellant also intended to farm the
property.
(f) Once the Schmidt
home site was subdivided out by the Appellants, a further subdivision of this
land would, at best, be very difficult to accomplish. The land is remote,
hilly, swamp or muskeg like bush land in northern British Columbia in which any
municipality would not want to service small holdings.
(g) and (h) An argument
which will turn on the facts.
(i) Should refer to
"his" spouse, and again turns on the facts.
(j) Turns on the
facts.
[6] The agreement to sell the timber
reads as follows:
SLOCAN GROUP – PLATEAU
DIVISION
LOG PURCHASE AGREEMENT
DATE: NOVEMBER 5, 1997
VENDOR: MICHAEL CLARK GRAY & ELLEN VICTORIA GRAY
PHONE NO.: 692-3312
ADDRESS: GENERAL DELIVERY, BURNS LAKE, B.C. V0J 1E0
GST REGISTRATION NUMBER:_______________
1. Subject to the terms and
conditions herein Slocan Group – Plateau Division (the "Company")
agrees to purchase from the Vendor and the Vendor agrees to sell to the Company
3,000 m3 of the timber from the Vendor's timberland described as
follows:
Timberbark: NB DNT
Property Description: NW 1/4, D.L. 341, Range 4,
Coast Dist. (Except Plan 9387 and 8955.
2. The Vendor confirms he
owns and/or has the right to sell the logs covered by this agreement. If the
Vendor is not the Timber Mark Holder a copy of a letter of authorization from
the Timber Mark holder must be attached as an integral part of this agreement.
3. The Vendor shall not
deliver to any other person or company any timber from the said timberland
until the Company has received all the timber to be delivered to it as required
by paragraph 1.
4. Delivery of the timber
purchased hereunder by the Company shall be delivered by the Vendor to the Company
as follows:
Delivery of ------, m3 (-------per
day) or (------ per month).
Commencing on or about Dec 1997
Completed no later than March 31/98
5. All logging truck
drivers, either directly employed by the vendor or hired, must have their truck
radios equipped with the Slocan Group – Plateau Division yard channel
frequency. This facilitates clear communication and direction in the log yard,
resulting in a reduction in the average time-in time-out cycle. The Slocan
Group – Plateau Division yard channel frequency is 154.920.
6. Slocan – Plateau
Division reserves the right to place a logging contractor if its choice, (for
the purpose of harvesting, the contracted volume described in item
"4") at any time if any conditions of this agreement are not met. Any
cost incurred will be deducted from the price agreed to in Item "9".
7. Logs delivered to Engen
will be processed to Slocan Group – Plateau Division Standards as per
specification sheets attached hereto.
8. The Vendor will at all
time indemnify and save harmless, Slocan Group – Plateau Division from and
against all penalties, levies, claims, damages, costs, actions and suits
arising out of the failure of the vendor; its servants, agents or
sub-contractors.
9. Payments for wood
delivered will be made twice monthly as per attached schedule.
10. The price paid for wood
will be as follows:
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BK
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s/m3
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Payment made to
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Address
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Log
Description
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Deliver
To
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TOTAL
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90.00
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Vendor
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Above
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Pl, St, Ba
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Engen
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11. Bonus payments will be
paid to: Vendor
12. Stumpage and Royalty will
be deducted from ----- at a rate of m3 based on a fixed kg per m3
conversion of 800. Any year end surplus or shortfall in the S&R account
shall be for the account of the Company and no adjustment payment shall be
made.
13. Payments will be based on
a fixed kg per m3 conversion of 800.
14. The Vendor will ensure
that all of his employees and contractors are adequately covered by the Workers
Compensation Board. Slocan Group – Plateau Division reserves the right to
deduct such disbursements from the proceeds of this agreement to make WCB
payments on behalf of the Vendor.
Contractor: 478299-141 (Gary
Martin)
15. Slocan Group – Plateau
Division reserves the right to withhold 15% of the purchase price for 40 days.
16. The volume of logs
delivered to Slocan Group – Plateau Division may be reduced or curtailed in the
event of strikes, lockouts, acts of God, market conditions or other reasons
beyond the control of Slocan Group – Plateau Division.
17. Comments:
18. The Company and the
Vendor have read the above and agree with and accept as binding the provisions
contained herein.
Exhibit A/R-1, Tab 17
[7] From
the gist of the evidence, the Court finds that Slocan did everything, including
the accounting and simply paid cheques to the Appellants, so that the sale was
in fact a sale of standing timber which Slocan cut from the land.
[8] The
first question is whether the Appellants are entitled to a capital gains
exemption with respect to the disposition of the timber. To be entitled, the
Appellants must come within the following portions of subsection 110.6(1):
110.6(1) For
the purposes of this section …
"qualified
farm property" of an individual (other than a trust that is not a
personal trust) at any particular time means a property owned at that time by
the individual, the spouse or common-law partner of the individual or a
partnership, an interest in which is an interest in a family farm partnership
of the individual or the individual's spouse or common-law partner that is
(a) real property
that was used by
(i) the individual,
(ii) where the individual
is a personal trust, a beneficiary referred to in paragraph 104(21.2)(b) of the
trust,
(iii) a spouse,
common-law partner, child or parent of a person referred to in subparagraph
110.6(1) "qualified farm property" (a)(i) or 110.6(1) "qualified
farm property" (a)(ii),
…
in the course of carrying
on the business of farming in Canada and, for the purpose of this paragraph,
property will not be considered to have been used in the course of carrying on
the business of farming in Canada unless
…
(vii) where the property is a
property last acquired by the individual or partnership before June 18, 1987,
or after June 17, 1987 under an agreement in writing entered into before that date,
the property or property for which the property was substituted (in this
subparagraph referred to as "the property") was used by the
individual, a beneficiary referred to in subparagraph 110.6(1) "qualified
farm property" (a)(ii) or a spouse, common-law partner, child or parent of
the individual or of such a beneficiary, a corporation referred to in
subparagraph 110.6(1) "qualified farm property" (a)(iv) or a
partnership referred to in subparagraph 110.6(1) "qualified farm property"
(a)(v) or by a personal trust from which the individual acquired the property
principally in the course of carrying on the business of farming in Canada
…
(B) in at least 5 years
during which the property was owned by the individual, a beneficiary referred
to in subparagraph 110.6(1) "qualified farm property" (a)(ii) or a
spouse, common-law partner, child or parent of the individual or of such a
beneficiary, by a personal trust from which the individual acquired the
property or by a partnership referred to in subparagraph 110.6(1)
"qualified farm property" (a)(v),
…
(d) an eligible
capital property used by a person or partnership referred to in any of
subparagraphs 110.6(1) "qualified farm property" (a)(i) to 110.6(1)
"qualified farm property" (a)(v), or by a personal trust from which
the individual acquired the property, in the course of carrying on the business
of farming in Canada and, for the purpose of this paragraph, eligible capital
property
(i) will not be
considered to have been used in the course of carrying on the business of
farming in Canada unless the conditions set out in subparagraph 110.6(1)
"qualified farm property" (a)(vi) or 110.6(1) "qualified farm
property" (a)(vii), as the case may be, are met, and
(ii) shall be deemed to
include capital property to which paragraph 70(5.1)(b) or 73(3)(d.1) applies;
[9] In
particular, to be entitled to this exemption, this land must have been used by
these individuals, or one of them acquired the property principally in the
course of carrying on the business of farming in Canada in at least five years
during which they owned it. (Subparagraph
110.6(2)(vii)(B))
[10] To determine this respecting the word "principally", the
Court adopts the following dicta of Rothstein, J.A. in Gulf Canada Resources
Limited v. The Queen, 93 DTC 5345 at 5348 and 5349 where he stated:
IT-195R4 also suggests that if more than fifty
per cent of a total area is rented, this is an indication that the property is
being used principally for the purpose of producing rent. Paragraph 4 of
IT-195R4 states in part:
4. As used in the definition of rental
property in subsection 1100(14), the word 'principally' means 'primarily' or
'chiefly'. In establishing whether a property is used principally for a given
purpose, ... (an) important factor to be considered is the proportion of the
amount of space rented in relation to the total area of the building. Again, if
more than 50 per cent of the total area is rented, that is an indication that
the property is being used principally for producing rental revenue.
Subsection 1100(14) in its entirety and IT-195R4
suggest that the words 'used ... principally for the purpose ...' are to be
considered having regard to two approaches, one quantitative and the other
qualitative. Under the quantitative approach, regard is to be had to the
proportion of a building that is used to produce rent. This is essentially the
approach referred to in paragraph 4 of IT-195R4. If more than fifty per cent of
a building is rented, this is an indication that the building is used by the
taxpayer mainly for the purpose of producing rent and it would likely be
'rental property'; if less than fifty per cent is rented, it would likely not
be 'rental property'.
Under the qualitative approach, the owner's main
purpose in using the property in the taxation year must be considered; hence,
the words following 'but for greater certainty ...' in subsection 1100(14) and
the service station example in IT-195R4. Thus, even if a property is leased and
rent is collected, if the use of the property is mainly for a purpose other
than the producing of rent, e.g., the selling of the owner's goods and services
as in the service station example, the property will not be 'rental property'.
While each case must be decided on its own facts, I would think that this
qualitative assessment requires taking into account evidence as to the owner's
business and the business carried out in the rented premises and the
relationship between the two. Where there is little or no relationship between
the owner's business and the business carried on in rented premises, the
presumption would be that the owner was using the rented premises principally
for the purpose of producing rent and it would be 'rental property'. Where
there is a relationship between the owner's business and the business carried
on in the rented premises, the nature of the relationship between the
businesses would have to be considered. Where it could be demonstrated that the
leasing of the rented premises was for a business purpose other than for
producing rent, the property would likely not be 'rental property'.
[11] In order to qualify for the five year period, the Appellant's evidence
was devoted to the time from acquisition in 1976 until 1986, when Mr. Gray
ceased his activity respecting the land due to an illness. Nothing was done
until 1990 when it was leased to the H&R Ranch.
[12] In the case of farmland of any size, there is usually, as in this
case, some wasteland which may in fact serve some purpose. Trees may shelter
animals; a large body of water may not be necessary, but some of that water is
necessary. To some extent you accept what you get when you buy land, as was the
case here. Thus the quantitative use of the farm property may not be an
appropriate measure in determining what is "principal". In this case
most of the land was not used for farming. The actual hayland amounted to about
1/4 to 1/3 of the total land area or the 141 acres. The farm yard was very
small. Mr. Gray testified that the sheep wandered out of their pasture and over
the northerly third of the total area; but their actual grazing area consisted
of about 1/6 of the total area, in the pasture or hayland near the buildings.
The Appellant husband filed the income tax returns respecting the farm and
claimed and was allowed a restricted farm loss each year. They also lived on
the farm. Thus quantitatively, based on area or money, the property was not
used principally in the course of carrying on the business of farming in
Canada. However, 1/3 of the total was wasteland – muskeg and rocky.
[13] Qualitatively, the Court accepts Mr. Gray's statement in the questions
he answered for CCRA in Exhibit A/R-1, Tab 19, question 3 that the property was
purchased with the initial intention that it be "used as a home for our
family with land for our children to "stretch their legs"." They
had set out to buy a home, not 150 acres, but those acres came with the right
sized house, at the right financeable price, near the school where Mr. Gray was
employed as a teacher through the years in question.
[14] Mr. Gray deducted all of the interest in the two mortgages as farm
expenses although some was attributable to the capital cost of their home; he
deducted the property taxes and he deducted all of the feed used for eggs, fowl
and lambs including those that they consumed. These constitute a personal
interest in the operation of the property. His testimony established that he
took great personal enjoyment from just walking through the acres. Except for
the hay and the chickens, his remaining alleged farming activities were
short-lived and obviously unprofitable and give the impression of something for
the children, or for personal consumption or a hobby. These include the
acquisition, consumption and sale of a few ducks, geese, bees, rabbits and sheep
all small scaled and short-lived. These might be described as small
"tryouts" but their sizes are so small that they imply either hobbies
or personal consumption.
[15] Both the hay and egg operations are different. The Appellants grew the
hay to sell most of it. They also sold about 1/2 or more of their egg
production, on average.
[16] Hay was being produced before the Appellants purchased the property in
1976 on all the land capable of producing it. The Appellants continued to
produce and sell hay. They also continued the previous owner's (Mr. Fehr)
arrangement with Mr. Schmidt who, with his equipment cut and baled the hay for
a 2/3 share. Contrary to common practice, the Appellants unloaded their share
of the hay and stored it in their own shed, from which they sold it. Mr. Gray
also recorded Mr. Schmidt's share as hay that he sold to Mr. Schmidt. The
normal lease-hay contract is that the harvester (Mr. Schmidt) takes the Gray
1/3 and stores, delivers and sells it for a cheque or cheques for that 1/3, payable
to Mr. Gray. The Gray family also cleared the hayland of rocks, fallings and
scree. In the Court's view, these actions by Mr. Gray and his family which
commenced in 1976 and continued until 1986, constituted a farming activity.
They ended in 1986 when Mr. Schmidt retired. The Grays had no expense except
their labour respecting the hay since they sold it to people who picked it up
at their farm. Thus, practically speaking, the sale price was all profit,
although the volume of hay varied from year to year. There was no personal
element to the hay production.
[17] From Mr. Gray's records which are exhibited, it appears that their net
proceeds from the sale of hay in each year from 1976 to 1986 are:
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1976
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$267.00
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1977
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490.00
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1978
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686.00
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1979
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652.00
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1980
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397.50
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1981
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262.50
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1982
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551.00
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1983
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524.00
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1984
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366.00
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1985
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300.00
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1986
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367.00
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[18] The Grays began selling eggs and fowl in December, 1976. They
continued to do this through 1986. Except respecting rabbit feed in 1977 the
feed costs for all animals was claimed as an expense in each year. Moreover,
the farm income reported is equally undeterminable because Mr. Gray sometimes
recorded "value" rather than sale prices and appears at times (or
perhaps always) to have recorded some consumption as sales income from the
value recorded. However, so far as can be determined from the records in
evidence, and in part because all costs were claimed as expenses, the costs
related to fowl and eggs exceed their sales income in each year from 1976 to
1986.
[19] Mr. Gray testified that the farm had to make money for him to meet the
mortgage payments from his income each year. In fact he deducted all of the
mortgage interest, apparently all the property taxes, and all the original
expenses from the farm income. In addition he recorded all the fowl expenses
against the egg income, although their family consumed eggs and fowl from their
production. The result was a farming loss each year which he deducted from his
teacher's salary as a restricted farm loss. These income tax returns, with a
minor irrelevant exception, were assessed as filed and the losses were allowed
from 1976 through 1986.
[20] Mr. Gray did not depreciate the farm buildings, which is an option to
the farmer. However there is no evidence that the farm buildings had any real
value and in these circumstances, the Court finds that the buildings had no
value.
[21] Mr. Gray prepared and filed his own income tax returns. In the Court's
view, his accounting practises described in paragraph [19] hereof describe a
personal element to the farm which, under the precedent of Brian J. Stewart
v. The Queen, 2002 DTC 6969 (S.C.C.) warrant a determination as to whether
the farm business had a reasonable expectation of profit and, in these
beginning years, constitute a start up, under the rules set out in Moldowan
v. The Queen, 77 DTC 5213 (S.C.C.).
[22] Using the Moldowan rules, the experience is of losses; Mr.
Gray's alleged training consisted of some after-school and weekend experiences
on farms in England while he was a schoolboy and several months spent shortly
after that with his sheepherder brother herding sheep, Mrs. Gray had no
experience; there is no evidence that either Gray had an intention to farm or
to develop any kind of a farm or even to make a profit from the farm; and the
farm did not, and could not, show a profit on the accounting basis adopted by
Mr. Gray or any other basis while the heavy financing remained.
[23] On this basis, the property was not used by the Appellants or acquired
by them principally in the course of carrying on the business of farming. In
fact, except for the hay, their activities consisted of personal use and
enjoyment of their home and residence. Moreover, neither the timber nor the
land on which it was located can be reasonably regarded as contributing to the
use and enjoyment of the dwelling as a residence since the timber was not
situated near the dwelling.
[24] For these reasons, the appeals are dismissed. The Respondent is
awarded its party-and-party costs but only one set of costs is to be taxed
respecting the conduct of the Hearing itself.
Signed at
Saskatoon, Saskatchewan, this 12th day of May 2004.
Beaubier,
J.
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