D
E
Taylor
[ORALLY]:—This
is
an
appeal
from
Margaret
M
Zygocki
with
respect
to
her
1977
income
tax
year.
The
matter
at
issue
has
been
spelled
out
in
a
notice
of
appeal
dated
28
September
1981,
and
in
the
Minister’s
reply
to
notice
of
appeal
dated
25
January
1982.
To
summarize:
in
Part
III,
paragraph
15
of
the
notice
of
appeal,
appellant’s
counsel
states:
The
Appellant
taxpayer
therefore
requests
that
the
Notice
of
Confirmation
by
the
Minister
dated
3
June
1981
be
varied
to
provide
that
the
gain
of
$190,712.47
realized
by
the
appellant
taxpayer
in
her
1977
taxation
year
be
taxed
on
a
capital
gains
basis.
It
is,
therefore,
encumbent
upon
the
appellant
to
show
the
Board
that
this
is
indeed
a
capital
gain.
I
make
reference
to
a
statement
of
agreed
facts
by
the
parties
which
included
with
it
certain
reference
material,
dated
March
1,
1983.
All
of
these
documents,
to
the
degree
relevant,
form
part
of
these
comments.
Counsel
for
the
Minister
presented
the
Board
with
an
outline
of
his
argument
and
that
also
is
taken
into
account
as
part
of
these
comments.
If
I
properly
understand
the
appellant’s
position,
her
counsel
relied
substantially
on
this
wording
in
paragraph
12(1
)(b)
of
the
Income
Tax
Act;
and
I
quote:
any
amount
receivable
by
the
taxpayer
in
respect
of
property
sold.
.
.
(italics
mine)
Appellant’s
counsel
noted
that
the
property
at
issue
in
this
matter
was
a
certain
parcel
of
real
estate
in
Whitby,
Ontario.
It
is
a
matter
of
agreement
between
the
parties
that
that
parcel
of
real
estate
was
not
“sold”
in
the
strict
sense
of
the
word.
So,
to
that
degree,
the
appellant’s
argument
is
not
appropriate.
I
am
not
certain
that
paragraph
12(1
)(b)
(except
for
any
portion
of
the
amount
at
issue
which
was
not
receivable
in
a
particular
year)
has
anything
to
do
with
the
ponit
at
issue.
I
would
suspect
that
it
falls
much
more
appropriately
under
section
3
of
the
Act,
and
there
is
no
basis
therein
to
support
the
appellant’s
position.
A
second
aspect
of
the
argument
from
counsel
for
the
appellant
is
that
the
amount
at
issue
did
not
result
from
a
damage
claim
—
was
not,
in
fact,
damages
at
all.
Counsel
for
the
Minister
dealt
with
that
argument
at
length,
both
in
his
submission
and
in
his
comments.
It
is
a
detailed
and
technical
argument
which
leads
one
through
a
lengthy
examination
of
the
law,
and
the
Minister
has
presented
a
very
cogent
case
in
support
of
the
position
that
the
amount
at
issue
here
today
could
be
nothing
other
than
damages.
It
is
my
view
that
the
position
of
the
Minister
might
well
be
supported
on
this
argument
alone.
Because
an
earlier
Supreme
Court
judgment
had
an
involvement
with
this
matter,
counsel
for
the
Minister
then
proceeded
to
a
second
position
which
was
that
there
was
another
“property”
—
the
contract,
the
agreement
of
purchase
and
sale.
According
to
the
Minister,
that
contract,
the
agreement
of
purchase
and
sale,
was
not
terminated,
was
not
disposed
of
in
any
way
by
the
Supreme
Court
judgment,
but
remained
in
effect
for
purposes
of
this
appeal.
However,
I
am
not
persuaded
that
the
Supreme
Court
judgment
has
any
direct
relevance
to
the
issue
here
today.
In
my
view,
the
matter
is
much
simpler
than
posed
by
either
party.
The
fact
is
that
the
appellant
in
this
matter
was
a
trader
in
real
estate
and
while
as
a
trader
in
real
estate
she
may
not
have
traded
in
land
(the
position
argued
by
her
counsel),
she
trade
in
the
agreement
of
purchase
and
sale
because
that
is
certainly
that
which
was
terminated
by
virtue
of
the
minutes
of
settlement
which
have
been
filed
with
the
Board.
I
read
from
paragraph
3
of
those
minutes
of
settlement
as
follows:
Plaintiffs
will
retain
the
lands
and
premises
referred
to
in
the
pleadings
herein
.
.
.
and
the
Defendant
does
not
now
and
will
not
at
any
time
in
the
future
claim
any
interest
in
those
lands
and
premises
.
..
In
my
view,
the
property
which
was
sold
(to
use
the
terminology
from
paragraph
12(1)(b))
—
to
the
extent
that
sold
in
that
context
can
be
interpreted
as
disposed
of
—
was
the
agreement
of
purchase
and
sale
in
that
it
was
terminated
by
the
minutes
of
settlement.
The
amount
at
issue
is
taxable,
taxable
on
income
account.
The
appeal
is
dismissed.
Appeal
dismissed.
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