Tremblay,
T.C.J.:—This
appeal
was
heard
on
March
11,
1987
at
the
City
of
Quebec,
Quebec.
1.
Issue
The
issue
is
whether
the
appellant,
a
company
operating
a
food
products
manufacturing
business,
was
justified,
when
computing
its
income
in
the
1979,
1980
and
1981
fiscal
years
(November
1
to
October
31),
in
deducting
as
current
expenses
the
amounts
of
$29,120
(1979),
$35,469
(1980)
and
$31,646
(1981).
These
amounts
represent
the
purchase
cost
of
display
units
provided
free
of
charge
to
its
retailers
in
these
years.
The
appellant
submits
that
these
display
units
are
not
capital
assets.
However,
it
never
recovers
them.
In
fact,
the
cost
of
recovery
(transportation,
repair)
would
greatly
exceed
their
purchase
price.
The
respondent,
on
the
other
hand,
considers
that
these
display
units
have
lasting
value
and
treats
them
as
tangible
capital
property
depreciable
over
five
years
at
20
per
cent
per
year,
under
Class
8
of
the
regulations
issued
under
the
Income
Tax
Act.
2.
Burden
of
Proof
2.01
The
appellant
has
the
burden
of
demonstrating
that
the
respondent's
assessments
are
unjustified.
This
burden
of
proof
is
the
outcome
of
a
number
of
legal
decisions,
including
the
judgment
of
the
Supreme
Court
of
Canada
in
Johnston
v.
M.N.R.,
[1948]
S.C.R.
486;
[1948]
C.T.C.
195;
3
D.T.C.
1182.
2.02
The
Court
ruled
in
that
case
that
the
presumed
facts
underlying
assessments
or
reassessments
by
the
respondent
are
presumed
to
be
true
until
proof
to
the
contrary.
In
this
case,
the
facts
presumed
by
the
respondent
are
described
in
subparagraphs
(a)
to
(h)
of
paragraph
10
of
the
respondent's
reply
to
the
notice
of
appeal.
This
paragraph
reads
as
follows:
[Translation]
10.
In
reassessing
the
appellant
for
its
1979,
1980
and
1981
taxation
years,
the
Minister
of
National
Revenue
relied
inter
alia
on
the
following
facts:
(a)
the
facts
alleged
in
paragraphs
1
and
2
of
the
notice
of
appeal;
[admitted]
These
two
paragraphs
state:
1.
The
appellant
is
a
company
legally
constituted
under
the
Canada
Business
Corporations
Act.
2.
During
the
years
1979,
1980
and
1981
the
appellant
operated
a
food
products
manufacturing
business,
the
sales
of
which
were
subsequently
chiefly
ensured
through
a
network
of
food
distributors,
wholesalers
and
retailers.
(b)
the
amounts
spent
by
the
appellant
for
the
purchase
of
product
display
units
were
$29,120.00
in
1979,
$35,469.00
in
1980
and
$31,646.00
in
1981;
[admitted]
(c)
the
appellant
does
not
sell
or
lease,
nor
does
it
give
away
its
product
display
units,
which
are
simply
placed
with
the
retailers
to
attach
its
products;
[admitted]
(d)
the
display
units
remain
at
all
times
the
property
of
the
appellant,
who
may
recover
them
at
any
time
if
it
so
desires;
[not
admitted]
(e)
the
display
units
have
a
useful
life
of
three
or
four
years
and
sometimes
more;
they
are
therefore
a
durable
advantage;
[admitted
in
part]
(f)
the
display
units
yield
a
durable
benefit
to
the
appellant
beyond
the
year
in
which
the
expense
is
incurred;
[denied]
(g)
the
purchase
of
display
units
constitutes
a
capital
expenditure;[denied]
(h)
the
capital
cost
allowance
of
the
display
units
should
be
computed
in
terms
of
Class
8
since
this
property
is
not
caught
by
any
other
class;
[denied]
3.
Facts
3.01
Generally
speaking,
the
facts
as
related
by
the
appellant's
witnesses,
Mrs.
Anne
Giroux,
the
accounts
supervisor,
Mr.
Michel
Blais,
the
appellant's
area
manager,
Mr.
Pierre
Lefebvre,
a
distributor
with
eight
years'
experience,
and
Mr.
Michel
Marchand,
C.A.,
may
be
summarized
as
follows:
3.01.1
During
the
years
in
question,
the
appellant
purchased
about
500
to
600
display
units
(devices
for
presenting
merchandise)
per
year
(Exhibit
A-1).
These
purchases
were
used
both
to
replace
other
display
units
in
the
possession
of
retailers
that
had
become
unusable
through
corrosion,
breakage,
etc.,
and
for
new
customers.
3.01.2
The
display
units
are
sent
initially
to
the
appellant's
distributors,
who
turn
them
over
to
the
retailers.
At
the
end
of
October
1986,
there
were
59
distributors,
each
covering
150
to
200
retailers,
thus
about
10,000
retailers
in
all.
About
85
per
cent
of
the
retailers
have
display
units
belonging
to
the
appellant.
Clause
6
of
the
contract
the
appellant
signed
with
a
distributor
(Exhibit
A-3)
reads
as
follows:
[Translation]
6-
STANDS.
The
company
may
provide
the
distributor
from
time
to
time
with
a
given
number
of
stands
that
it
considers
are
necessary
to
facilitate
sales
and
the
display
of
its
products.
The
distributor
will
maintain
a
current
list
of
all
addresses
of
dealers
with
whom
one
or
more
stands
have
been
placed
by
it.
This
list
will
be
submitted
to
the
company
by
the
distributor
every
thirty
(30)
days.
The
distributor
will
be
responsible
for
paying
the
company
on
demand
the
value
of
those
stands
destroyed
or
damaged
through
the
fault,
negligence,
carelessness
or
inattention
of
the
distributor.
3.01.3(1)
The
display
units
may
be
built
in
a
metal
structure
or
consist
of
a
perforated
particle
board
with
hooks.
The
particularized
statements
of
inventory
for
the
years
1979
to
1985
(Exhibit
A-4)
distinguish
between
display
units
(K-18,
with
8
or
12
branches,
or
K-27),
the
costs
of
which,
in
the
years
in
question,
varied
from
$2.76
to
$11.12,
and
cardboard
shelves
with
hooks,
or
particle
“pegboard
racks",
the
costs
of
which
varied
from
$44.26
to
$60.40.
These
shelves
ranged
in
size
from
2
feet
by
5
feet
to
4
feet
by
6
feet.
The
inventories
in
the
appellant's
possession
were
worth
$6,150
in
1979,
$4,175
in
1980
and
$10,500
in
1981.
Subject
to
the
interpretation
of
the
contract
between
the
appellant
and
a
retailer
(Exhibit
A-5),
the
shelves,
according
to
the
oral
evidence,
are
all
classified
as
display
units
belonging
to
the
appellant
(para.
4.03.3).
3.01.3(2)
It
appears
from
the
detailed
statements
of
display
unit
purchases
that
the
annual
expenditures
on
the
units
ranged
from
$24,960
in
1979
to
$151,443
in
1986
(Exhibit
A-2).
The
cost
of
the
hooks
for
the
first
unit
placed
with
a
retailer
or
subsequently
replaced
accounted
for
33
per
cent
of
the
total
expenditure
in
1979,19.4
per
cent
in
1980
and
25
per
cent
in
1981.
3.01.3(3)
Generally,
about
20
per
cent
of
the
annual
expenditure
on
the
display
units
goes
to
their
replacement
and
80
per
cent
to
development,
or
new
clients.
This
is
part
of
the
marketing
strategy:
a
sales
tool,
a
market
penetration
tool,
or
an
advertising
tool.
3.01.4(1)
According
to
the
witnesses,
the
display
units
always
remain
the
property
of
the
appellant.
They
are
like
a
part
of
the
first
delivery
to
the
retailer,
who
has
possession
of
them
and
uses
them.
A
display
unit
lasts
for
about
three
years,
but
its
use
can
be
extended
up
to
seven
years
if
the
retailer
is
particularly
careful.
3.01.4(2)
Even
when
a
retailer
shuts
down
or
no
longer
wants
the
appellant's
product,
the
appellant
never
takes
back
the
display
unit.
The
cost
of
transportation
and
repair
would
be
several
times
the
purchase
price.
3.01.4(3)
The
display
unit
cannot
be
taken
and
transferred
to
another
retailer;
the
retailer
always
receives
a
brand
new
unit.
Once
the
unit
is
taken
to
the
retailer's,
the
appellant,
in
practice,
loses
control
of
it.
In
fact,
the
retailer,
under
the
contract
with
the
appellant,
takes
it
on
consignment.
He
is
the
one
who
places
it
in
the
desired
location
and
fills
it
with
products.
He
even
undertakes
to
insure
the
unit
against
fire
and
other
risks.
The
contract
signed
by
the
retailer
was
introduced
along
with
all
the
other
documents
(notice
of
objection,
financial
statements,
etc.)
at
the
time
of
the
notice
of
appeal,
as
Exhibit
A-5.
3.01.5
The
clauses
in
the
contract
between
the
appellant
and
the
retailer
(Exhibit
A-5)
read
as
follows:
[Translation]
The
Company
hereby
offers
and
the
Dealer
agrees
to
take
on
consignment
the
wall
shelf
(shelves)
belonging
to
Krispy
Kernels
(Canada)
Inc.
subject
to
the
terms
and
conditions
provided
hereafter:
1.
Title
to
the
wall
shelf
(shelves)
shall
remain
in
the
name
of
the
Company
at
the
risk
of
the
Dealer
until
such
time
as
this
contract
is
rescinded.
The
Dealer
shall
not
allow
the
wall
shelf
(shelves)
to
become
or
remain
subject
to
any
lien
or
charge.
The
Dealer
agrees
to
insure
the
shelf
(shelves)
against
fires
and
other
supplementary
perils
and
hereby
subrogates
to
the
Company
all
proceeds
of
this
insurance.
2.
The
Dealer
is
authorized
to
and
shall
sell
only
the
Company's
products
and
no
other
product
in
or
on
the
walnut
stand(s)
described
above.
3.
The
Company
shall
provide
the
Dealer
with
all
the
products
required
by
the
said
Dealer,
provided
that
the
product
that
is
ordered
is
in
current
stock.
4.
In
the
event
that
the
Dealer
substitutes
other
products
in
place
of
the
Company's
products
by,
for
example,
buying
walnuts
or
merchandise
from
other
companies,
or
displaying
them
on
the
various
shelves,
the
Company
has
the
irrevocable
right
to
terminate
this
contract.
5.
The
Dealer
shall
at
all
times
place
the
walnut
shelf
(shelves)
described
above
in
an
obvious
location
in
his
place
of
business.
6.
Time
is
of
the
essence
of
this
agreement
and
if
the
Dealer
violates
the
terms
of
his
contract,
or
is
declared
bankrupt,
or
if
the
said
merchandise
is
(are)
seized
or
confiscated
or
assigned
for
the
benefit
of
creditors,
if
he
sells
or
conveys
his
business
such
that
the
sale
of
the
merchandise
sold
by
the
Company
continues,
the
title
to
the
walnut
shelf
(shelves)
will
revert
forthwith
to
the
Company.
If
there
is
any
default
in
the
execution
of
the
terms
stipulated
herein,
the
Company
may
terminate
this
contract
at
its
option
without
risk
of
damages
or
otherwise.
If,
at
the
time
the
Company
resumes
possession
of
the
said
merchandise,
certain
repairs
are
necessary,
they
will
be
at
the
expense
of
the
Dealer.
The
Dealer
acknowledges
that
there
is
no
representation,
warranty
or
condition,
express
or
implied,
statutory
or
otherwise,
other
than
those
contained
herein.
This
contract
inures
to
the
benefit
of,
and
binds
the
heirs,
executors,
administrators
and
successors
of
both
the
Company
and
the
Dealer.
3.01.6
On
occasion
a
distributor
visiting
a
retailer
finds
the
display
unit
in
the
back
room,
having
been
replaced
by
a
new
display
from
another
supplier,
unknown
to
the
appellant.
The
retailer
is
using
50
per
cent
of
the
display
unit
supplied
by
the
appellant
for
the
display
of
products
other
than
those
sold
by
the
appellant,
including
those
of
its
competitors.
Some
retailers
have
even
sold
the
display
unit.
They
tell
the
distributor,
[translation]
“It
was
mine,
it
was
part
of
what
I
purchased."
3.01.7
The
display
units
were
a
part
of
the
appellant’s
advertising.
Placed
close
to
the
cash
register,
the
unit
is
apparently
located
at
the
place
most
inducive
to
sales.
It
is
placed
there
by
the
distributor
during
his
visit
but
in
fact
it
is
the
retailer
who
ultimately
decides
where
he
wants
to
put
it
after
the
distributor
has
left.
Upon
his
return,
the
distributor
seldom
finds
it
close
to
the
cash
register.
Mr.
Pierre
Lefebvre
testified
that
in
his
experience
the
display
unit
is
very
important
for
advertising
and
sales.
Not
having
a
display
unit
is
a
negative
element.
Where
it
exists
it
has
a
positive
impact,
serving
as
a
sales
incentive.
3.01.8
According
to
Mr.
Michel
Marchand,
an
accountant
who
is
the
appellant's
general
manager,
the
appellant
had
bought
the
display
units
in
order
to
change
sales
techniques
by
maximizing
its
space
with
the
retailers.
Previously,
they
had
retained
the
cost
of
the
display
units,
$15,000
or
$20,000,
on
the
company’s
books,
but
ultimately
they
had
written
them
off
at
one
dollar
for
accounting
purposes.
During
the
years
in
question,
these
costs
are
been
[sic]
entered
annually
under
current
expenses.
According
to
Mrs.
Giroux,
some
competitors
such
as
Planters
give
display
units
to
the
retailers
and
enter
the
costs
under
operating
expenses.
3.01.9
A
number
of
display
units
are
kept
in
the
appellant's
inventory.
The
intention
is,
in
the
short
term,
to
transfer
them
to
the
distributors
who
will
themselves
place
them
with
the
retailers.
In
the
appellant's
balance
sheet,
this
transitional
inventory
appears
in
the
short
term
assets.
3.02
Another
witness
for
the
appellant
was
Mr.
Charles
Pelletier,
C.A.
He
was
accepted
as
an
expert
witness.
3.02.1
Mr.
Pelletier
has
been
a
practising
accountant
for
more
than
30
years.
He
is
a
former
president
of
the
Canadian
Tax
Foundation
and
the
Ordre
des
comptables
agréés
du
Québec.
In
addition,
without
mentioning
his
extracurricular
activities
and
honorary
doctoral
degrees,
Mr.
Pelletier
is,
among
other
things,
a
full
professor
of
taxation
at
Laval
University.
He
is
or
has
been
as
well
a
professor
at
the
University
of
Sherbrooke,
the
Canadian
Institute
of
Chartered
Accountants,
the
Ecole
du
Barreau
du
Québec
and
the
Institute
of
Canadian
Bankers.
The
accounting
firm
Caron,
Bélanger,
Clarkson
et
Gordon,
in
which
Mr.
Pelletier
is
a
partner,
was
not
the
appellant's
auditor
during
the
years
in
question,
although
in
October
1982
it
began
to
perform
those
duties.
It
was
not
until
late
1986
that
Mr.
Pelletier
was
personally
instructed
by
the
appellant
to
express
his
opinion
on
the
display
unit
expenditure,
and
to
testify
accordingly
as
an
expert
witness
on
the
matter.
3.02.2
The
issue
concerning
the
display
units
is
whether
the
appellant’s
purchase
expense
is
a
current
expense
or
a
depreciable
capital
expense.
Mr.
Pelletier's
expert
testimony
dealt
with
an
explanation
of
the
economic
facts
underlying
the
generally
recognized
principle
concerning
a
capital
expense
as
opposed
to
a
current
expense.
The
witness
referred
to
a
Canadian
study
entitled
Accounting
Principles-A
Canadian
Viewpoint,
by
Ross
M.
Skinner,
and
in
particular
the
chapter
on
"Fixed
Assets
and
Depreciation”.
At
page
88,
in
the
paragraph
entitled
“Criteria
for
capitalization”,
the
author
states:
In
theory
any
tangible
asset
acquired
for
use
and
not
for
resale,
and
having
a
usefulness
extending
beyond
one
yearly
accounting
period,
is
a
capital
asset.
In
practice
most
businesses
are
likely
to
modify
this
definition
in
recognition
of
the
fact
that
accounting
for
fixed
assets
makes
work,
and
the
information
obtained
by
keeping
track
of
very
small
units
is
not
worth
the
cost
involved.
Such
modification
usually
takes
the
form
of
a
policy
decision
not
to
capitalize
additions
beneath
a
stated
amount.
In
addition
the
policy
may
dictate
that
short-lived
capital
assets
(say
under
three
years)
be
written
off
immediately
unless
their
cost
is
very
substantial.
The
limits
adopted
will
vary
from
business
to
business,
since
amounts
that
would
be
significant
to
a
business
of
one
size
may
be
quite
immaterial
to
another.
The
policy
for
any
one
business
should
similarly
be
adjusted
from
time
to
time,
as
the
business
grows.
Referring
to
Skinner's
observation
that
some
businesses
decide
"not
to
capitalize
additions
beneath
a
stated
amount",
the
witness
pointed
out
that
the
drafters
of
the
Income
Tax
Act
had,
in
the
same
spirit,
felt
the
need
to
create
Class
12,
covering
certain
property
worth
less
than
$200,
granting
it
a
100
per
cent
capital
cost
allowance
in
the
year
of
purchase.
The
display
units,
obviously,
are
not
specifically
provided
for
in
the
list
of
property
in
this
class,
but
they
were
nevertheless
referred
to
in
this
connection
by
the
witness
(para.
3.02.5).
3.02.3
During
the
years
in
question,
the
prices
of
the
display
units
ranged
from
$5
to
$55.
Accordingly,
because
of
their
small
value,
they
should
not
be
capitalized,
Mr.
Pelletier
says.
He
also
explained
that
the
accepted
accounting
principle
to
this
effect
is
the
result
of
a
longstanding
accounting
practice.
He
also
explained
that
in
addition
to
durabilty
there
are
a
number
of
tests
dealing
with
value
and
use
that
are
used
to
establish
the
economic
value
of
a
particular
property.
These
tests
can
be
presented
in
the
form
of
questions:
What
is
the
intrinsic
value
of
the
property?
Its
exchange
value?
What
is
the
material
nature
or
quality
of
the
particular
property?
Who
controls
it?
How
is
it
used?
3.02.4
Mr.
Pelletier
admitted
that
the
arguments
raised
in
the
notice
of
objection
concerning
the
ownership
of
the
display
units
and
their
contribution
as
advertising
expenses
had
not
been
considered
by
him
in
the
expert
opinions
he
gave,
but
he
acknowledged
them
unequivocally,
especially
with
respect
to
advertising.
The
appellant
does
not
have
control
over
the
units;
they
are
at
the
retailers
and
this
is
certainly
the
best
location
for
them
to
serve
as
advertising.
3.02.5
In
his
testimony
the
witness
referred
to
a
letter
to
the
appellant
by
the
accounting
firm
Caron,
Bélanger,
Dallaire,
Gagnon
&
Associés
on
August
12,
1983,
which
the
respondent
had
appended
to
its
reply
to
the
notice
of
appeal
as
an
argument
in
support
of
its
own
position.
The
witness
noted
first
that
as
a
practitioner,
what
counts
is
the
result.
In
the
letter,
he
explained
to
the
client
that
the
cost
of
the
display
units
could
be
presented
to
the
Department
of
National
Revenue
as
falling
within
class
12
(depreciable
at
100
per
cent).
Interpretation
Bulletin
IT-422
accepts
shopping
carts,
metal
trays,
etc.
as
class
12
assets,
so
why
shouldn't
display
units
fall
within
this
class?
The
accounting
firm
explained
to
the
appellant
that
another
argument
that
could
be
made
to
the
Department
of
National
Revenue
was
that
display
units
are
considered
somewhat
similar
to
returnable
containers.
They
should
in
that
case
be
considered
part
of
inventory.
And
like
any
other
inventory,
they
should
be
assessed
at
the
lesser
of
the
cost
or
the
net
value
of
realization
at
year-end.
In
fact,
what
was
the
inventory
value
of
the
display
units
to
the
customers?
Nothing.
This
is
another
way
to
calculate
the
expense,
Mr.
Pelletier
concluded.
Again,
he
said,
this
letter
was
a
practical
opinion
for
a
client
(T.,
pp.
32-35).
3.02.6
Mr.
Pelletier
testified
that
if
he
saw
a
company's
balance
sheet
in
which
display
units
were
considered
capital
property,
he
would
not
consider
them
to
be
a
valuable
asset.
[Translation]
“This
is
property
that
I
would
set
aside.”
(T.,
p.
36)
In
fact,
this
property,
he
said,
[translation]
“has
no
intrinsic
value.
Its
value
derives
from
the
use
to
which
it
is
put,
that
is,
as
display
units
for
products
manufactured
by
a
taxpayer."
(T.,
p.
37)
3.02.7
On
cross-examination,
Mr.
Pelletier
explained
that
accounting
depreciation
represented
the
distribution
of
the
cost
of
property
over
a
certain
number
of
years.
This
distribution
is
established
according
to
what
is
then
thought
to
be
the
life
expectancy
of
the
property,
independently
of
the
capital
cost
allowance
fixed
by
the
Income
Tax
Act.
Some
companies
even
establish
financial
statements
initially
in
accordance
with
economic
depreciation
and
then,
for
tax
purposes,
in
accordance
with
the
capital
cost
allowance.
3.02.8
In
the
event
of
bankruptcy,
Mr.
Pelletier
said,
the
bankrupt's
display
units
in
the
hands
of
the
retailers
would
in
substance
be
considered
as
having
no
value
(T.,
pp.
52,
53).
However,
Mr.
Pelletier
acknowledged
that
the
display
units
in
the
hands
of
the
retailers
that
do
not
have
to
be
replaced
within
one
year
have
some
value
to
the
business
(T.,
p.
56).
The
economic
value
of
the
display
unit
may
even
be
related
to
the
replacement
cost
(T.,
p.
80).
4.
Law-Authorities-Analysis
4.01
Law
The
chief
provisions
of
the
Income
Tax
Act
(the
Act)
and
the
Regulations
thereunder
that
are
discussed
in
this
appeal
are
paragraphs
18(1)(a)
and
(b),
section
1100
of
the
Regulations
and
Schedule
Il,
classes
8
and
12.
They
provide
as
follows:
18.
(1)
In
computing
the
income
of
a
taxpayer
from
a
business
or
property
no
deduction
shall
be
made
in
respect
of:
(a)
an
outlay
or
expense
except
to
the
extent
that
it
was
made
or
incurred
by
the
taxpayer
for
the
purpose
of
gaining
or
producing
income
from
the
business
or
property;
(b)
an
outlay,
loss
or
replacement
of
capital,
a
payment
on
account
of
capital
or
an
allowance
in
respect
of
depreciation,
obsolescence
or
depletion
except
as
expressly
permitted
by
this
Part;
1100.
(1)
For
the
purposes
of
paragraph
20(1)(a)
of
the
Act,
there
is
hereby
allowed
to
a
taxpayer,
in
computing
his
income
from
a
business
or
property,
as
the
case
may
be,
deductions
for
each
taxation
year
equal
to
(a)
subject
to
subsection
(2),
such
amount
as
he
may
claim
in
respect
of
property
of
each
of
the
following
classes
in
Schedule
Il
not
exceeding
in
respect
of
property
(viii)
of
Class
8,
20
per
cent,
(xii)
of
Class
12,
100
per
cent.
Class
8
Property
not
included
in
Class
2,
7,
9
or
30
that
is
(i)
a
tangible
capital
property
that
is
not
included
in
another
class
in
this
Schedule
except
(i)
land
or
any
part
thereof
or
any
interest
therein,
(ii)
an
animal,
(iii)
a
tree,
shrub,
herb
or
similar
growing
thing,
(iv)
a
gas
well,
(v)
a
amine,
(vi)
an
oil
well,
(vii)
radium,
(viii)
a
right
of
way,
(ix)
a
timber
limit,
(x)
a
tramway
track,
or
(xi)
property
of
a
separate
class
prescribed
by
subsection
1101
(2a);
Class
12
Property
not
included
in
any
other
class
that
is
(h)
a
tool
costing
less
than
(i)
$100,
if
acquired
before
May
26,
1976,
or
(ii)
$200,
if
acquired
after
May
25,1976;
4.02
Authorities
The
following
cases
were
referred
to
by
the
parties:
1.
B.P
Australia
Ltd.
v.
Commissioner
of
Taxation
of
the
Commonwealth
of
Australia,
[1965]
3
All
E.R.
209;
[1966]
A.C.
224;
2.
Oxford
Shopping
Centres
Ltd.
v.
The
Queen,
[1980]
C.T.C.
7;
79
D.T.C.
5458
(F.C.T.D.);
[1981]
C.T.C.
128;
81
D.T.C.
5065;
3.
Knomark
of
Canada
Ltd.
v.
The
Deputy
Minister
of
Revenue,
Quebec,
Quebec
Provincial
Court,
District
of
Montreal,
No.
500-02-044552-771
(August
23,
1978);
4.
Dresden
Farm
Equipment
Ltd.
v.
The
Minister
of
National
Revenue,
[1982]
C.T.C.
2377;
82
D.T.C.
1388
(T.R.B.);
5.
The
Minister
of
National
Revenue
v.
Wardean
Drilling
Limited,
[1969]
C.T.C.
265;
69
D.T.C.
5194;
6.
The
Minister
of
National
Revenue
v.
Algoma
Central
Railway,
[1967]
C.T.C.
130;
67
D.T.C.
5091;
[1968]
S.C.R.
447;
[1968]
C.T.C.
161;
68
D.T.C.
5096;
7.
British
Insulated
and
Helsby
Cables,
Limited
v.
Atherton,
[1926]
A.C.
205;
10
T.C.
188;
8.
Tower
Investment
Inc.
v.
The
Minister
of
National
Revenue,
[1972]
C.T.C.
182;
72
D.T.C.
6161;
9.
Imperial
Oil
Limited
v.
The
Minister
of
National
Revenue,
[1947]
Ex.
C.R.
527;
[1947]
C.T.C.
353;
3
D.T.C.
1090;
10.
Browning
Harvey
Limited
v.
The
Minister
of
National
Revenue,
[1983]
C.T.C.
2341;
83
D.T.C.
311
(T.R.B.);
11.
Johns-Manville
Canada
Inc.
v.
The
Queen,
[1985]
2
S.C.R.
46;
[1985]
2
C.T.C.
111;
85
D.T.C.
5373;
12.
Robert
Bédard
Auto
Ltée
v.
The
Minister
of
National
Revenue,
[1985]
2
C.T.C.
2354;
85
D.T.C.
643
(T.C.C.);
13.
Estate
of
the
late
Viola
L.
Campbell
v.
The
Minister
of
National
Revenue,
[1983]
C.T.C.
2229;
83
D.T.C.
197
(T.R.B.).
4.03
Analysis
4.03.1
The
point
is
whether
the
expense
incurred
for
the
display
units
can
be
deducted
under
paragraph
18(1)(a)
of
the
Act,
as
the
appellant
contends,
or
under
paragraph
18(1
)(b),
as
submitted
by
the
respondent.
The
respondent
classifies
the
display
units
as
Class
8
property,
with
a
capital
cost
allowance
of
20
per
cent.
The
appellant,
on
the
other
hand,
submits
that
even
by
applying
paragraph
18(1)(b),
the
expense
could
be
allowed
as
a
deduction
at
100
per
cent
under
Class
12.
4.03.2
The
major
facts
on
which
the
respondent
relies
and
which
are
in
dispute
(para.
2.02)
can
be
summarized
as
follows:
the
display
units
are
the
property
of
the
appellant
and
are
recoverable
(10(d)).
They
have
a
useful
life
of
three
years
or
more
(10(e)).
They
have
a
durable
benefit
beyond
the
current
year
(10(f)).
They
are
therefore
a
capital
expenditure
(10(g))
and
the
capital
cost
allowance
should
be
computed
under
Class
8
(10(h)).
4.03.3
Concerning
the
ownership
of
the
display
unit
once
it
is
turned
over
to
the
retailer,
this
point
is
determined
by
the
contract
between
the
appellant
and
the
retailer
(Exhibit
A-5)
as
transcribed
in
paragraph
3.01.5.
The
introductory
words
preceding
paragraph
1,
which
state
that
the
wall
shelves
placed
on
consignment
with
the
retailer
are
the
property
of
the
appellant,
seem
clear
at
first
sight.
However,
an
element
of
ambiguity
arises
when
the
writer
of
the
contract
uses
the
expressions
"walnut
stands"
(para.
2)
and
"walnut
shelves"
(paras.
5
and
6)
instead
of
retaining
“wall
shelves"
as
in
the
introduction
to
the
contract
ind
paragraph
1.
Are
these
shelves
something
different?
Paragraph
4
speaks
of
“various
shelves".
So
there
must
be
different
kinds.
Would
the
wall
shelves
be
the
cardboard
shelves
with
hooks
(the
pegboard
racks),
and
the
walnut
shelves
he
display
units
(para.
3.01.3
and
Exhibit
A-4)?
Paragraph
6
seems
to
confirm
this
view.
It
says
in
effect
that
in
the
event
of
eizure
or
bankruptcy,
"the
title
to
the
walnut
shelf
(shelves)
will
revert
forthwith
to
the
Company."
The
same
cannot
be
said
about
the
title
to
the
wall
shelf
since
it
has
never
been
transferred
to
the
retailer,
as
demonstrated
by
the
introductory
words
of
the
contract.
The
title
to
the
walnut
shelf,
that
is,
the
display
unit,
would
therefore
revert
to
the
retailer
in
the
event
of
bankruptcy.
Yet,
how
can
the
appellant
require
that
the
title
revert
to
it
unless
it
has
already
been
transferred
to
the
retailer?
Finally,
if
this
is
the
case,
doesn't
the
principle
"you
can't
give
and
retain
at
the
same
time"
apply?
The
answer
to
this
question
must
be
yes.
Thus,
wall
shelf
or
walnut
shelf,
display
unit
or
cardboard
shelf
with
hooks,
everything,
even
when
turned
over
to
the
retailer,
remained
the
property
of
the
appellant.
4.03.4
Concerning
the
life
span
of
the
display
units,
it
is
three
years
on
average,
but
it
can
sometimes
extend
up
to
seven
years
(para.
3.01.4).
Does
this
mean
that
the
display
units
are
a
capital
expense
subject
to
capital
cost
allowance
and
therefore
not
allowable
as
a
deduction
in
the
year
of
purchase?
The
appellant
pleads
to
the
contrary.
4.03.5
The
expression
“capital
expense"
is
not
defined
in
the
Act.
In
Johns-
Manville
Canada
Inc.
(para.
4.02(11))
and
Algoma
Central
Railway
(Para.
4.02(6)),
the
Supreme
Court
of
Canada
ruled
on
this
matter.
The
facts
in
each
of
these
cases
are
summarized
as
follows:
4.03.5(1)
Algoma
Central
Railway
In
order
to
improve
its
transportation
business,
the
respondent
company
arranged
for
a
geological
survey
of
the
mineral
possibilities
of
a
section
of
the
unpopulated
land
through
which
its
railway
ran
in
the
province
of
Ontario.
The
purpose
was
to
make
the
information
arising
from
the
survey
available
to
the
public,
in
the
hope
and
expectation
that
it
would
lead
to
development
of
the
area
and
thus
increase
traffic
over
the
transportation
system.
In
the
computation
of
the
respondent's
income
for
the
years
1960,
1961
and
1962,
the
Minister
refused
to
allow
the
deduction
of
the
moneys
paid
for
the
survey
on
the
ground
that
these
expenditures
were
outlays
"of
capital”
or
payments
"on
account
of
capital"
within
the
meaning
of
s.
12(1
)(b)
of
the
Income
Tax
Act,
R.S.C.
1952,
c.
148.
The
Exchequer
Court
allowed
the
deduction
and
the
Minister
appealed
to
this
Court.
4.03.5(2)
Johns-Manville
Canada
Inc.
Appellant,
in
the
course
of
operating
its
open
pit
mine,
was
forced
to
buy
peripheral
land
in
order
to
continue
the
necessary
wall
slope
and
angle
of
repose
of
the
overburden.
The
land
did
not
overlay
any
of
the
ore
body
and
would
gradually
disappear
as
the
mine
deepened
and
the
mouth
of
the
mine
became
wider.
At
issue
was
whether
or
not
appellant
had
the
right
to
charge
the
purchase
cost
of
this
land
to
expense
rather
than
to
capital.
In
the
latter
case,
at
pages
117
to
120
(D.T.C.
5377
to
5379;
S.C.R.
56
to
59)
([1985]
2
S.C.R.),
Estey,
J.
cites
extensive
case
law
pointing
to
the
difficulties
and
the
various
ways
in
which
the
amounts
disbursed
might
be
considered
operating
expenses
or
capital
expenses.
This
text
and
the
others
that
follow
constitute
a
precious
source
that
it
is
appropriate
to
quote
in
full:
4.03.5(3)
When
one
turns
to
the
appropriate
principles
of
law
to
apply
to
the
determination
of
the
classification
of
an
expenditure
as
being
either
expense
or
capital,
an
unnerving
starting
place
is
the
comment
of
the
Master
of
the
Rolls,
Sir
Wilfred
Greene
in
British
Salmson
Aero
Engines
Ltd.
v
Commissioner
of
Inland
Revenue
(1938),
22
TC
29,
at
p.
43:
.
.
.
there
have
been
.
.
.
many
cases
where
this
matter
of
capital
or
income
has
been
debated.
There
have
been
man'
cases
which
fall
upon
the
borderline:
indeed,
in
many
cases
it
is
almost
true
1
T'
that
the
spin
of
a
coin
would
decide
the
matter
almost
as
satisfactorily
as
an
a
ipt
to
find
reasons
.
.
.
4.03.5(4)
This
Court
encountered
paragraph
12(1)(b)
in
Minister
of
National
Revenue
v
Algoma
Central
Railway,
[1968]
SCR
447;
[1968]
CTC
161.
Fauteux
J,
as
he
then
was,
at
449
(CTC
162)
stated:
Parliament
did
not
define
the
expressions
“outlay
.
.
.
of
capital”
or
"payment
on
account
of
capital”.
There
being
no
statutory
criterion,
the
application
or
non-application
of
these
expressions
to
any
particular
expenditures
must
depend
upon
the
facts
of
the
particular
case.
We
do
not
think
that
any
single
test
applies
in
making
that
determination
.
.
.
.
The
Court
thereupon
expressed
agreement
with
the
decision
of
the
Privy
Council
in
B.P.
Australia
Ltd.
v.
Commissioner
of
Taxation
of
the
Commonwealth
of
Australia,
[1966]
AC
224.
The
Privy
Council
there
determined
that
a
payment
made
by
the
taxpayer
as
an
inducement
to
a
service
station
operator
to
sign
an
exclusive
agency
contract
was
an
income
expenditure
and
not
a
capital
outlay.
The
contract
had
a
life
of
five
years
and
thus
was
an
asset
of
sorts
which
amounted
to
an
opportunity
by
the
taxpayer
to
market
its
gasoline
exclusively
throughout
the
operator's
outlet.
Nonetheless
Lord
Pearce
concluded,
at
260:
B.P’s
ultimate
object
was
to
sell
petrol
and
to
maintain
or
increase
its
turnover.
There
can
be
no
doubt
that
the
only
ultimate
reason
for
any
lump
payment
was
to
maintain
or
increase
gallonage.
4.03.5(5)
Here
the
taxpayer
made
the
expenditure
not
in
order
to
acquire
a
piece
of
land
so
that
it
could
strip
non-ore-bearing
rock
from
it
but
in
order
to
derive
income
from
the
taxpayer's
existing
ore
body
which
was
not
located
underneath
the
land
in
question.
After
reviewing
a
number
of
different
approaches
to
the
problem
of
classifying
in
law
and
accounting
the
nature
of
the
expenditure,
Lord
Pearce
stated,
at
264-65:
The
solution
to
the
problem
is
not
to
be
found
by
any
rigid
test
or
description.
It
has
to
be
derived
from
many
aspects
of
the
whole
set
of
circumstances
some
of
which
may
point
in
one
direction,
some
in
the
other.
One
consideration
may
point
so
clearly
that
it
dominates
other
and
vaguer
indications
in
the
contrary
direction.
It
is
a
commonsense
appreciation
of
all
the
guiding
features
which
must
provide
the
ultimate
answer.
Although
the
categories
of
capital
and
income
expenditure
are
distinct
and
easily
ascertainable
in
obvious
cases
that
lie
far
from
the
boundary,
the
line
of
distinction
is
often
hard
to
draw
in
border
line
cases;
and
conflicting
considerations
may
produce
a
situation
where
the
answer
turns
on
questions
of
emphasis
and
degree.
That
answer:
"depends
on
what
the
expenditure
is
calculated
to
effect
from
a
practical
and
business
point
of
view
rather
than
upon
the
juristic
classification
of
the
legal
rights,
if
any,
secured,
employed
or
exhausted
in
the
process":
per
Dixon
J
in
Hallstroms
Pty.
Ltd.
v
Federal
Commissioner
of
Taxation
(1946),
72
CLR
634,
648.
(Emphasis
added.)
4.03.5(6)
.
.
.
This
question
is
remarkably
apt
on
the
circumstances
in
the
appeal
now
before
this
Court.
The
Privy
Council’s
answer
was
that
the
expenditure
was
not
to
be
taken
as
being
on
the
structure
but
rather
as
part
of
the
money
earning
process.
At
273,
Lord
Pearce,
in
considering
the
manner
in
which
the
benefit
procured
by
the
expenditure
was
to
be
used,
stated
that
such
benefit
was
to
be
used
“in
the
continuous
and
recurrent
struggle
to
get
orders
and
sell
petrol”.
In
my
view,
the
same
result
is
reached
on
the
circumstances
existing
in
this
appeal.
The
removal
of
the
ore
here
was
obviously
the
continuous
and
recurrent
struggle
in
which
the
taxpayer
was
principally
engaged,
and
the
expenditure
here
was,
as
revealed
by
its
uniform
history
over
the
years
and
by
its
role
in
the
process
of
the
recovery
of
ore,
part
of
the
essential
profit-seeking
operation
of
the
taxpayer.
In
the
Hallstroms
case,
[Hallstroms
Pty.
Ltd.
v.
Federal
Commissioner
of
Taxation
(1946),
72
C.L.R.
634]
Dixon
J,
as
he
then
was,
in
discussing
the
difference
between
capital
and
income
expenditures,
stated,
at
647,
that
the
difference
lay:
..
.
between
the
acquisition
of
the
means
of
production
and
the
use
of
them,
between
establishing
or
extending
a
business
organization
and
carrying
on
the
business;
between
the
implements
employed
in
work
and
the
regular
performance
of
the
work
.
.
.;
between
an
enterprise
itself
and
the
sustained
effort
of
those
engaged
in
it.
4.03.5(7)
Other
tests
have
been
adopted
in
other
tax
systems.
Also
in
Australia,
in
the
High
Court
decision
in
Sun
Newspapers
Ltd.
v
Federal
Commissioner
of
Taxation
(1938),
61
CLR
337,
the
Court,
speaking
through
Dixon
J,
enunciated
three
principles
to
be
applied
in
determining
the
character
of
an
expenditure
by
a
taxpayer
for
the
purposes
of
applying
the
taxation
statute.
He
stated,
at
363:
There
are,
I
think,
three
matters
to
be
considered,
(a)
the
character
of
the
advantage
sought,
and
in
this
its
lasting
qualities
may
play
a
part,
(b)
the
manner
in
which
it
is
to
be
used,
relied
upon
or
enjoyed,
and
in
this
and
under
the
former
head
recurrence
may
play
its
part,
and
(c)
the
means
adopted
to
obtain
it;
that
is,
by
providing
a
periodical
reward
or
outlay
to
cover
its
use
or
enjoyment
for
periods
commensurate
with
the
payment
or
by
making
a
final
provision
or
payment
so
as
to
secure
future
use
or
enjoyment.
On
the
preceding
page,
His
Lordship,
in
explaining
the
test
from
another
aspect,
Said:
.
.
.
the
expenditure
is
to
be
considered
of
a
revenue
nature
if
its
purpose
brings
it
within
the
very
wide
class
of
things
which
in
the
aggregate
form
the
constant
demand
which
must
be
answered
out
of
the
returns
of
a
trade
or
its
circulating
capital
and
that
actual
recurrence
of
the
specific
thing
need
not
take
place
or
be
expected
as
likely.
The
Court
on
that
occasion
was
concerned
with
the
character
to
be
ascribed
to
a
payment
made
by
one
competitor
to
another
to
secure
a
discontinuance
of
a
new
and
threatening
adventure.
The
Court
concluded
the
payment
was
capital
in
nature
and
should
not
be
charged
to
revenue.
4.03.5(8)
There
is
almost
an
endless
rainbow
of
expressions
used
to
differentiate
between
expenditures
in
the
nature
of
charges
against
revenue
and
expenditures
which
are
capital.
It
has
been
said
that
the
terminology
employed
is
merely
an
attempt
to
identify
particular
factors
which
may
tilt
the
scale
in
a
particular
case
in
favour
of
one
or
the
other
conclusions.
At
one
time
it
was
considered
helpful
to
identify
the
funds
expended
as
either
“circulating
capital”
or
“fixed
capital”.
The
vocabulary
has
changed
but
the
same
problem
of
classification
survives.
4.03.5(9)
Another
example
of
these
helpful
but
not
controlling
tests,
and
of
the
changing
taxation
law
vocabulary,
is
found
in
the
decision
of
the
Privy
Council
in
Commissioner
of
Taxes
v
Nchanga
Consolidated
Copper
Mines
Ltd,
[1964]
AC
948,
where
Viscount
Radcliffe
stated,
at
959:
Nevertheless,
it
has
to
be
remembered
that
all
these
phrases,
as,
for
instance,
"enduring
benefit"
or
“capital
structure"
are
essentially
descriptive
rather
than
definitive,
and,
as
each
new
case
arises
for
adjudication
and
it
is
sought
to
reason
by
analogy
from
its
facts
to
those
of
one
previously
decided,
a
court's
primary
duty
is
to
inquire
how
far
a
description
that
was
both
relevant
and
significant
in
one
set
of
circumstances
is
either
significant
or
relevant
in
those
which
are
presently
before
it.
4.03.5(10)
Further
on,
Estey,
J.
points
to
other
interesting
facets
of
the
problem:
At
one
time,
the
test
applied
by
the
courts
in
discriminating
as
between
revenue
and
capital
was
the
"once
and
for
all”
test.
This
test
was
adopted
by
Viscount
Cave
LC
in
British
Insulated
and
Helsby
Cables,
Ltd.
v
Atherton,
[1926]
AC
205
at
213.
Viscount
Cave
observed
that
the
finding
of
revenue
or
capital
was
a
question
of
fact,
but
then
concerned
himself
with
the
answer
to
the
question
because
of
an
imprecise
finding
below.
The
test
he
adopted
at
213
was
”.
.
.
to
say
that
capital
expenditure
is
a
thing
that
is
going
to
be
spent
once
and
for
all,
and
income
expenditure
is
a
thing
that
is
going
to
recur
every
year",
although
he
recognized
that
this
test
was
not
"to
be
a
decisive
one
in
every
case”.
Later
on
the
same
page
the
Lord
Chancellor
elaborated:
.
.
.
[W]hen
an
expenditure
is
made,
not
only
once
and
for
all,
but
with
a
view
to
bringing
into
existence
an
asset
or
an
advantage
for
the
enduring
benefit
of
a
trade,
I
think
that
there
is
a
very
good
reason
(in
the
absence
of
special
circumstances
leading
to
an
opposite
conclusion)
for
treating
such
an
expenditure
as
properly
attributable
not
to
revenue
but
to
capital.
4.03.5(11)
In
this
the
Court
relied
upon
the
earlier
decision
of
Vallambrosa
Rubber
Co
v
Farmer,
[1910]
SC
519
at
525.
A
few
years
later
in
Ounsworth
v
Vickers
Ltd,
[1915]
3
KB
267,
at
273,
Rowlatt,
J
interpreted
this
test
as
not
requiring
that
expenditures
be
made
on
an
annual
basis
in
order
to
qualify
them
as
a
deduction
from
revenue
but
rather
that
the
expenditures
be
"made
to
meet
a
continuous
demand".
This
discussion
of
authorities
takes
one
full
circle
to
the
words
of
Lord
Reid
in
Regent
Oil
v
Strick,
[1966]
AC
295,
at
313:
So
it
is
not
surprising
that
no
one
test
or
principle
or
rule
of
thumb
is
paramount.
The
question
is
ultimately
a
question
of
law
for
the
court,
but
it
is
a
question
which
must
be
answered
in
the
light
of
all
the
circumstances
which
it
is
reasonable
to
take
into
account,
and
the
weight
which
must
be
given
to
a
particular
circumstance
in
a
particular
case
must
depend
rather
on
common
sense
than
on
strict
application
of
any
single
legal
principle.
(Emphasis
added.)
4.03.05(12)
It
is
of
little
help,
in
my
respectful
opinion,
to
attempt
to
classify
the
character
of
the
expenditure
according
to
the
subject
of
that
expenditure.
Here
it
was
land,
and
expenditure
for
land
may
be
classified
in
good
accounting
and
in
good
law
as
capital
or,
in
different
circumstances,
as
an
expenditure
chargeable
against
revenue
in
the
computation
of
profit.
In
the
words
of
Romer,
LJ:
It
depends
in
no
way
upon
what
may
be
the
nature
of
the
asset
in
fact
or
in
law.
Land
may
in
certain
circumstances
be
circulating
capital.
A
chattel
or
a
chose
in
action
may
be
fixed
capital.
The
determining
factor
must
be
the
nature
of
the
trade
in
which
the
asset
is
employed.
Golden
Horse
Shoe
(New),
Ltd.
v
Thurgood,
[1934]
1
KB
548
(CA),
at
563.
4.03.6
Examining
all
of
the
evidence:
(a)
the
display
units,
the
property
that
was
the
subject
matter
of
the
expense
(paras.
3.01.1
to
3.01.4),
(b)
their
role
as
advertising
materials
(para.
3.01.7),
(c)
the
absolute
control
exercised
by
the
retailer
over
the
display
units
(para.
3.01.4(3)
and
3.01.6),
and
(d)
the
regular
recurrence
of
the
expense
(para.
3.01.3(2)),
my
initial
conclusion
is
that
the
solution
to
the
problem
in
question
must
be
found
by
looking
at
"what
the
expenditure
is
calculated
to
effect
from
a
practical
and
business
point
of
view”,
as
was
pointed
out
by
Dixon,
J.
in
Hallstroms
Pty.
Ltd.,
cited
earlier
at
paragraph
4.03.5(5).
To
my
way
of
thinking,
the
three-year
average
life
span
of
the
display
units
(para.
3.01.4(1)),
which
seems,
at
first
sight,
to
make
them
a
capital
expense,
must
give
way
in
face
of
the
control
exercised
over
them
by
the
retailer
(para.
3.01.6),
the
practical
impossibility
for
the
appellant
of
recovering
them
(para.
3.01.4(2)),
the
regular
recurrence
of
the
expense
(para.
3.01.3(2)),
the
importance
of
the
expense
for
acquiring
new
customers
(para.
3.01.3(3)),
and
the
minimum
cost
of
each
unit
(para.
3.01.3(1)).
4.03.7
With
regard
to
the
life
span
of
this
particular
property,
which
is
always
related
to
the
once
and
for
all
expense
test,
it
is
appropriate
to
refer
to
B.P.
Australia
Ltd.,
the
facts
of
which
were
summarized
above
(para.
4.03.5(4))
by
the
Supreme
Court
of
Canada
in
Algoma
Central
Railway
and
Johns-Manville
Canada
Inc.
This
test
required
that
to
qualify
as
a
once
and
for
all
expense,
it
need
not
be
an
annual
one,
but
that
it
be
"made
to
meet
a
continuous
demand",
as
quoted
above
(para.
4.03.5(11)),
which
is
certainly
the
case
regarding
the
display
units.
4.03.8
In
my
opinion,
the
nature
of
the
trade
in
which
the
asset
is
employed
becomes
a
determining
element,
as
was
emphasised
by
Romer,
L.J.
in
Golden
Horse
Shoe
(New),
Ltd.,
quoted
above
(para.
4.03.5(12))
by
the
Supreme
Court
of
Canada.
If,
in
this
case,
moreover,
you
take
into
account
the
nature
of
the
property
and
its
low
price
per
unit,
you
tie
into
the
opinion
of
the
accounting
expert,
Mr.
Charles
Pelletier,
relying
on
the
Canadian
Study
by
Skinner,
Accounting
Principles
(paras.
3.02.2
and
3.02.3)
regardless
of
the
publicity
associated
with
the
units
(3.02.4).
4.03.9
The
advertising
impact,
to
my
way
of
thinking,
has
great
importance
in
this
case.
It
is
at
least
as
important
as
in
B.P.
Australia
Ltd.
(para.
4.02(1),
at
page
265,
in
which
the
promotion
of
sales
was
one
of
the
bases
for
deciding
that
payments
to
service
station
operators
were
in
the
nature
of
income,
even
if
many
of
these
payments
were
lump
payments.
5.
Conclusion
The
appeal
is
allowed
with
costs
and
the
matter
referred
back
to
the
respondent
for
reconsideration
and
reassessment
in
accordance
with
the
above
reasons.
Appeal
allowed.
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