GIBSON,
J.:—This
is
an
appeal
by
the
appellant
against
a
re-assessment
of
income
tax
made
by
the
respondent
by
notice
dated
May
16,
1963,
for
the
taxation
year
1960
whereby
it
was
assessed
tax
in
the
sum
of
$797,347.84.
The
appellant
is
a
specially
limited
mining
company
which
was
incorporated
under
the
laws
of
British
Columbia
on
March
28,
1951,
and
has
its
head
office
in
the
City
of
Vancouver,
B.C.,
and
at
the
present
is
in
voluntary
liquidation
having
disposed
of
its
physical
assets
to
Western
Development
and
Power
Ltd.
which
was
at
the
material
time
a
wholly-owned
subsidiary
of
B.C.
Electric
Co.
Ltd.
Upon
its
incorporation,
the
appellant
acquired
a
coal
mine
known
as
Hat
Creek
Coal
Mine
which
was
situated
near
the
Town
of
Ashcroft
in
the
Province
of
British
Columbia.
This
coal
mine
was
originally
owned
by
a
company
known
as
St.
Eugene
Mining
Corporation
Ltd.
which
had
acquired
it
by
agreement
dated
August
4,
1944,
from
one
Manfred
McGeer
for
$19,000.
By
agreement
dated
January
13,
1947,
which
was
filed
as
Exhibit
A-16
on
this
appeal,
St.
Eugene
Mining
Corporation
Ltd.
agreed
to
sell
to
the
appellant
company
(then
yet
to
be
incorporated)
the
Hat
Creek
Coal
Mine
for
the
issuance
of
900,000
fully
paid
and
non-assessable
par
value
shares
of
the
appellant
company
;
and
by
the
same
agreement
the
Wilson
Mining
Corporation
Ltd.
agreed
by
the
contract
to
underwrite
or
arrange
a
firm
underwriting
to
provide
the
sum
of
$34,000
to
the
appellant
company
for
the
purchase
of
400,000
shares
of
the
appellant
company
to
be
incorporated
to
yield
the
price
of
8^0
per
share
to
the
appellant
company.
In
addition,
by
the
same
agreement,
the
Wilson
Mining
Corporation
Ltd.
obtained
an
option
from
St.
Eugene
Mining
Corporation
Ltd.
to
purchase
450,000
shares
of
the
900,000
shares
to
be
issued
to
St.
Eugene
Mining
Corporation
Ltd.
(pursuant
to
arrangements
above
stated)
for
the
price
of
the
cost
of
such
shares
to
St.
Eugene
Mining
Corporation
Ltd.,
namely,
one-half
of
$32,753.91
or
the
price
of
about
7.4¢
per
share.
The
said
sum
of
$32,753.91
represented
the
money
which
St.
Eugene
Mining
Corporation
Ltd.
had
spent
on
the
property
between
the
time
of
its
acquisition
of
this
mine
in
1944
and
January
13,
1947,
the
date
of
this
agreement.
No
name
was
chosen
for
the
company
to
be
incorporated
at
the
date
of
this
agreement,
viz.,
January
13,
1947,
but
subsequently
in
1951
when
the
company
was
incorporated
the
name
chosen
for
the
appellant
company
and
granted
by
way
of
provincial
charter
from
the
Province
of
British
Columbia
was
Inland
Resources
Company
Ltd.
(Non-Personal
Liability).
Between
1947
and
1951
the
evidence
was
that
Mr.
R.
R.
Wilson
and
his
two
sons,
Mr.
R.
W.
Wilson,
an
engineer,
and
Mr.
Keith
Wilson,
the
secretary
of
Wilson
Mining
Corporation
Ltd.,
had
written
a
considerable
number
of
letters
to
various
corporations
and
to
others
trying
to
get
them
interested
in
markets
for
the
products
of
the
mine,
which
in
the
main
was
coal,
but
which
also
included
limestone,
tile
and
other
by-products.
Then
in
the
year
1953,
the
appellant
company
was
successful
in
obtaining
a
Crown
grant
of
the
Hat
Creek
Mine.
Shortly
after
1951,
according
to
the
evidence,
the
situation
was
that
oil
and
gas
were
being
put
on
the
market
in
British
Columbia
and
in
the
Province
of
Alberta,
and
the
coal
business
was
in
the
decline,
and
the
possibility
of
establishing
another
cement
plant
diminished
with
the
establishment
of
Lafarge
Cement
Company
Ltd.
on
the
Fraser
River
in
Vancouver.
There
was
no
development
of
the
Hat
Creek
Mine
from
1951,
but
in
1956,
one
Sharp
attempted
to
obtain
an
option
to
buy
on
a
royalty
basis
the
mine
from
the
appellant
but
the
St.
Eugene
Mining
Corporation
Ltd.
interests
in
the
appellant
company
were
not
in
favour,
and
nothing
became
of
the
Sharp
offer.
Subsequent
to
that,
in
the
year
1956,
and
continuing
into
the
year
1957,
negotiations
were
had
with
B.C.
Electric
Co.
Ltd.
for
the
purpose
of
producing
a
thermal
plant
fired
with
the
coal
from
it.
As
a
result
of
these
negotiations,
an
option
agreement
was
entered
into
dated
August
7,
1957,
between
the
appellant
and
Western
Development
and
Power
Co.
Ltd.,
which
was
a
wholly
owned
subsidiary
of
B.C.
Electric
Co.
Ltd.
This
option
agreement
was
filed
as
Exhibit
A-85
on
this
appeal.
This
option
gave
Western
Development
and
Power
Co.
Ltd.
the
right
to
do
certain
exploratory
work
on
the
Hat
Creek
Mine
of
the
appellant
for
the
purpose
of
ascertaining
the
extent
and
quality
of
the
coal
bed,
and
this
they
did
and
it
was
necessary
for
them
to
extend
this
option
to
complete
their
exploratory
work,
and
an
agreement
extending
this
option
was
entered
into
dated
August
8,
1958,
between
the
parties,
which
was
filed
as
Exhibit
A-140
on
this
appeal.
By
this
option
extension
Western
Development
and
Power
Co.
Ltd.
obtained
three
periods
of
extension,
namely,
to
February
9,
1959,
to
August
10,
1959,
and
thirdly,
to
February
8,
1960,
for
each
of
which
successive
extensions
they
paid
the
appellant
certain
monies,
as
more
particularly
set
out
in
the
agreement.
In
the
agreement,
also,
there
was
spelled
out
what
exploratory
work
Western
Development
and
Power
Co.
Ltd.
proposed
to
do
during
each
of
the
periods
of
such
extension
if,
in
fact,
they
wished
to
obtain
the
benefit
of
each
of
these
extensions
for
their
inquiry
work.
As
a
result
of
this
exploratory
work
done
by
Western
Development
and
Power
Co.
Ltd.,
it
ascertained
that
there
probably
were
deposits
of
about
700,000,000
tons
of
coal.
Prior
to
this
the
actual
extent
of
this
deposit
was
not
known
but
the
appellant
company
through
Wilson
Mining
Corporation
Ltd.
had
done
some
but
not
very
extensive
exploratory
work
and
the
estimate
they
made
of
the
probable
tonnage
of
coal
was
substantially
less
than
that
proven
by
the
exploratory
work
of
Western
Development
and
Power
Ltd.
Their
highest
estimate
was
something
under
100,000,000
tons
of
coal.
The
sale
was
finally
completed
in
1960
with
the
subsidiary
of
B.C.
Electric
Company
Ltd.
for
the
sum
of
$1,575,000,
Exhibit
A-144,
which
was
filed
and
was
an
excerpt
from
the
meeting
of
the
directors
of
the
appellant
company
held
on
February
26,
1960.
The
resolution
passed
at
that
meeting
read
as
follows:
“Be
it
resolved
that
the
sale
of
all
of
the
Company’s
properties
known
as
the
‘Hat
Creek
Group’
to
Western
Development
and
Power
Limited
pursuant
to
an
Option
Agreement
dated
the
7th
day
of
August,
1957,
and
extended
by
Agreement
dated
the
8th
day
of
August,
1958,
and
varied
and
exercised
by
Agreement
dated
the
8th
day
of
February,
1960,
subject
to
the
terms
and
conditions
of
said
agreements,
be
and
the
same
is
hereby
ratified
and
confirmed.’’
It
was
then
explained
at
this
meeting
of
directors
as
follows
:
“Mr.
Wilson
then
explained
the
variations
between
the
new
Agreement
of
February
8th,
1960,
and
the
original
Agreement
dated
August
7th,
1957.
Western
Development
had
attempted
to
cut
the
original
price
of
$2,000,000.00
(payable
over
the
next
four
years)
by
approximately
two
thirds.
This
was
turned
down
and,
after
several
meetings
of
negotiations,
it
was
agreed
that
Inland
Resources
would
accept
$1,570,000.00
in
cash
and
320,000
shares
of
Van
Tor
as
final.
This
change
amounts
to
approximately
a
6%
discount
on
a
present
day
basis.
’
’
As
appears
in
the
following
resolution,
which
was
also
passed
by
the
appellant
company,
it
was
resolved
that
the
company
go
into
voluntary
liquidation
after
this
sale
was
completed.
This
resolution
read
as
follows
:
“Be
it
resolved
that
the
Company
be
wound
up
voluntarily
pursuant
to
Part
VIII
of
the
‘Companies
Act’
and
that
Frederick
Field
be
appointed
Liquidator
of
the
estate
and
effects
of
the
Company
for
the
purpose
of
winding
up
its
affairs
and
distributing
its
property.’’
Shortly
thereafter,
the
Minister
of
National
Revenue
made
an
assessment
against
the
appellant
which
was
amended
subsequently
and
which
concerned
the
value
placed
by
the
Minister
on
the
Van-Tor
Oil
and
Explorations
Ltd.
shares.
The
net
result
of
these
re-assessments
by
the
Minister
was
to
calculate
the
taxable
income
of
this
appellant
for
the
taxation
year
1960
in
the
sum
of
$1,609,191.68.
The
reasons
for
this
reassessment
and
the
adjustments
are
as
follows:
From
this
re-assessment
the
Minister
has
assessed
as
taxable
income
the
difference
between
the
cash
received
of
$1,575,000
plus
the
value
of
the
320,000
shares
of
Van-Tor
Oil
and
Explorations
Ltd.
which
are
found
to
be
$263,200
and
has
subtracted
from
that
sum
the
sum
of
$110,499.83
allegedly
being
the
initial
cost
of
the
mine
at
fair
market
value
which
the
Minister
arrived
at
by
multiplying
1,300,000
shares
of
the
appellant
company
times
814¢,
and
also
by
deducting
the
sum
of
$13,504.49,
being
development
and
carrying
expenses.
The
net
difference
the
Minister
assessed
the
appellant
as
its
revised
taxable
income
being
in
the
sum
of
$1,609,195.68.
Previous
Taxable
Income
|
|
$
|
NIL
|
Add:
Profit
on
sale
of
Hat
Creek
Coal
Mine
as
|
|
follows
:
|
|
Sale
proceeds
|
|
Cash
|
|
1,570,000.00
|
320,000
shares
of
Van-Tor
Oil
and
Explo
|
|
rations
Ltd.
@
quoted
market
value
Feb
|
|
ruary
9,1960—$0.51
each
|
|
163,200.00
|
|
$1,7338,200.00
|
Less:
Initial
cost
of
mine
at
|
|
fair
market
value
|
$110,499.83
|
|
Development
and
carry-
|
|
ing
expenses
|
13,504.49
|
|
124,004.32
|
Revised
Taxable
Income
|
|
$1,609,195.68
|
The
814¢
value
of
the
shares
appears
to
have
been
determined
by
the
Minister
by
using
the
purchase
of
the
shares
in
the
appellant
company
contained
in
paragraph
7
of
the
agreement
dated
January
13,
1947,
Exhibit
A-16,
between
St.
Eugene
Mining
Corporation
and
Wilson
Mining
Corporation
Ltd.
Under
clause
7
of
that
agreement
the
Wilson
company
contracted
to
underwrite
or
arrange
a
firm
underwriting
to
provide
the
sum
of
$34,000
by
the
purchase
of
400,000
shares
of
the
appellant
company
then
to
be
incorporated
to
yield
the
price
of
814¢
per
share.
Under
clause
6
of
the
same
agreement
the
Wilson
company
obtained
an
option
to
purchase
450,000
shares
in
the
appellant
company
for
the
price
of
something
less
than
7.4$
per
share.
When
the
shares
were
actually
issued
by
the
appellant
company
in
1951
the
appellant
company
showed
the
value
of
these
shares
on
its
books
at
$1
per
share
or
at
$1,300,000.
This
appears
in
the
journal
entries
from
the
appellant’s
books,
a
copy
of
which
was
filed
as
Exhibit
A-66
and
the
copies
of
the
income
tax
returns
of
the
appellant
which
were
filed
as
an
exhibit
on
this
appeal.
At
the
same
time,
on
the
books
of
Wilson
Mining
Corporation
Ltd.,
the
value
of
these
shares
during
all
the
material
times
appeared
on
their
cash
outlay
to
them,
namely,
81/2¢
P
er
share;
and
on
the
books
of
St.
Eugene
Mining
Corporation
Ltd.
the
value
of
these
shares
appearing
on
their
books
at
approximately
7.4¢
per
share.
It
is
the
allegation
of
the
appellant
that
it
sold
its
capital
assets
and
that
the
receipts
of
monies
and
shares
received
was
a
capital
receipt
on
the
realization
of
such
assets
and
not
an
income
receipt
in
view
of
the
evidence
of
the
record
of
the
appellant
in
operating
a
mine
and
not
dealing
in
mines.
In
this
connection,
the
only
actual
operation
of
the
mine
was
in
producing
a
small
quantity
of
coal
to
consumers
in
the
Village
of
Ashcroft,
B.C.
In
the
alternative,
the
appellant
submits
that
if
it
should
be
found
that
the
difference
between
the
purchase
and
sale
price
of
the
said
mine
is
income
within
the
meaning
of
the
Income
Tax
Act,
the
calculation
of
the
amount
of
income
should
not
exceed
$365,295.51.
Its
submission
in
this
regard
is
that
the
calculation
should
be
made
as
follows
:
(a)
Proceeds
from
sale
of
mine
:
Cash
|
$1,570,000.00
|
|
320,000
shares
of
Van-Tor
Oils
|
|
and
Explorations
Limited
at
346
|
108,800.00
|
$1,678,800.00
|
(b)
Initial
cost
of
mine
at
fair
mar
|
|
ket
value
|
1,300,000.00
|
|
Development
and
carrying
ex
|
|
penses
|
13,504.49
|
1,313,504.49
|
Increase
in
value
|
..
|
$
|
865,295.51
|
More
than
a
hundred
exhibits
were
put
in
evidence
and
there
were
called
as
witnesses
for
the
appellant
Mr.
R.
W.
Wilson,
son
of
Mr.
R.
R.
Wilson,
of
the
Wilson
Mining
Corporation
Ltd.,
his
brother
Mr.
Keith
Wilson,
who
was
the
secretary
of
the
Wilson
company
at
all
material
times,
and
also
Mr.
Alexander
Smith,
an
engineer
who
worked
for
Mr.
R.
R.
Wilson,
and
subsequently
with
St.
Eugene
Mining
Corporation
Ltd.
The
respondent
called
no
evidence
but
did
submit
certain
proof
in
documentary
form
which
was
filed
as
exhibits.
The
evidence
disclosed
that
St.
Eugene
Mining
Corporation
Ltd.
was
one
of
the
so-called
Ventures
Group
who
were
a
metal
mining
group
of
companies
and
that
these
companies
expended
during
these
material
years
in
respect
of
companies
other
than
the
appellant
very
sizeable
amounts
of
money
in
the
exploration
and
development
of
metal
mines.
The
explanation
given
as
to
why
the
Ventures
Group
handed
to
Wilson
Mining
Corporation
Ltd.
the
Hat
Creek
Mine
for
development
was
that
Mr.
R.
R.
Wilson
in
particular
and
also
his
company,
Wilson
Mining
Corporation
Ltd.,
had
a
background
of
substantial
knowledge
in
the
coal
mining
field
and
that
their
knowledge
and
experience
was
such
that
the
possibility
of
developing
the
Hat
Creek
Mine
as
a
coal
mine
would
be
greater
than
if
the
Ventures
Group
themselves
through
the
St.
Eugene
Mining
Corporation
Ltd.
or
any
other
company
had
embarked
on
this
endeavour.
The
evidence
substantiates
the
fact
that
Mr.
R.
R.
Wilson
and
the
Wilson
people
in
the
company
of
Wilson
Mining
Corporation
did
have
very
considerable
coal
mining
experience
and
were
recognized
as
experts
in
the
field
in
British
Columbia.
There
was
much
correspondence
in
this
connection
and
from
which
it
was
suggested
that
the
inference
should
be
drawn
that
the
Wilson
group
were
trying
to
get
the
Hat
Creek
Mine
operating
as
the
mine,
In
this
respect.
the
letters
were
written
to
Powell
River
Ltd.,
Pacific
Mills
Ltd.,
B.C.
Cement
Co.
and
others.
The
tenor
of
this
correspondence
indicated
that
the
intent
of
the
appellant
at
all
material
times
was
to
establish
at
the
Hat
Creek
mine
site
a
cement
plant
or
a
plant
for
the
development
of
power
or
for
processing
pulp,
for
all
of
which
uses
it
was
necessary
to
have
very
substantial
amounts
of
cheap
heat.
The
advantage
of
Hat
Creek
Mine
was
that
there
were
very
substantial
quantities
of
low
grade
lignite
coal
there
and
that
any
of
the
users
could
join
in
with
the
appellant
to
benefit
from
the
use
of
the
coal,
all
of
which
uses
were
consistent
with
the
intent
on
the
part
of
the
appellant
to
get
the
mine
operating
as
a
mine.
This
effort
by
the
appellant
through
the
Wilson
mining
group
was
mainly
directed
in
finding
a
market
for
the
coal
and
not
in
expending
money
on
the
Hat
Creek
property
for
the
purpose
of
ascertaining
the
precise
limits
and
quantities
of
the
field.
The
evidence
indicated
that
the
appellant
was
of
the
view
that
there
was
no
point
in
spending
money
unless
there
was
a
market.
Counsel
stated
that
Section
23(1)
of
the
British
Columbia
Companies
Act,
R.S.B.C.
1960,
c.
67,
provided
that
in
the
charter
incorporating
a
company
such
as
this
that
it
was
necessary
to
include
in
the
objects
clause
a
power
to
sell
the
assets.
This
may
not
be
a
strict
construction
of
the
particular
wording
of
this
subsection
of
the
statute
but
the
statement
of
counsel
for
the
appellant
which
was
concurred
in
by
counsel
for
the
respondent
was
to
the
effect
that
the
Registrar
in
the
companies
branch
of
the
office
of
the
Provincial
Secretary
of
the
Province
of
British
Columbia
insisted
that
such
a
sale
provision
be
put
in
the
objects
clause
of
all
such
charters.
In
this
connection,
the
relevant
statute
at
the
material
times
was
the
Revised
Statutes
of
British
Columbia,
1948,
c.
58,
the
wording
of
which
was
carried
into
Section
23(1)
of
the
1960
Revised
Statutes
of
British
Columbia.
The
appellant
alleges
and
the
evidence
disclosed
that
the
Wilson
Mining
Corporation
had
for
many
years
various
mining
interests
and
that
they
had
never
attempted
at
any
time
to
sell
any
of
their
mines
and
that
this
particular
case
in
the
year
1956
was
the
first
time
that
there
was
any
suggestion
made
to
sell
the
Hat
Creek
Mine
of
the
appellant.
As
stated,
the
thought
of
selling
originated
with
the
offer
by
one
Sharp
which
came
unsolicited,
and
it
was
a
royalties
transaction
which
involved
bringing
the
property
into
production
but
this
transaction
was
not
entered
into
because
the
share
interest
in
the
appellant
company
represented
by
the
St.
Eugene
Mining
Corporation
Ltd.
objected
to
entering
into
this
agreement,
saying
in
effect
that
the
price
was
too
low
and
that
Sharp
really
did
not
intend
to
develop
the
property,
but
wished
to
make
a
profit
by
selling
to
some
third
party.
The
evidence
was
that
in
1956
the
B.C.
Electric
Co.
would
not
join
with
the
appellant
in
any
joint
effort
to
develop
the
mine
but
would
agree
only
to
a
sale
and
purchase
because
it
was
a
public
utility.
This
is
set
out
in
a
letter
from
Mr.
Keith
Wilson
dated
October
22,
1956,
filed
as
Exhibit
A-114
in
this
appeal
and
the
reply
of
refusal
by
the
British
Columbia
Electric
Co.
Ltd.
which
is
filed
as
Exhibit
A-115
in
this
appeal.
As
a
result
negotiations
in
1957
resulted
in
the
option
agreement
being
entered
into
(Exhibit
85),
the
option
being
extended
(Exhibit
A-140)
and
the
option
being
finally
exercised
in
February,
1960
(Exhibit
A-143).
The
appellant
alleges
that
during
the
period
of
1947
and
1960
it
exerted
a
continuous
effort
to
develop
the
Hat
Creek
Coal
Mine
property
as
a
mine
and
to
bring
it
into
production;
that
the
letters,
Exhibits
A-55,
A-56
and
A-57,
written
by
Mr.
KR.
R.
Wilson
during
the
period
of
February
28
to
October
9,
1948,
in
which
he
offered
to
sell
the
property,
were
firstly,
not
authorized
and
secondly,
in
any
event,
were
not
part
of
the
long
range
program
of
bringing
the
mine
into
production;
instead
all
the
action
taken
by
the
appellant
company
was
consistent
with
bringing
the
plant
into
production
until
economic
circumstances
in
1956
changed
the
situation
which
resulted
in
the
subsequent
sale
of
this
property
to
the
subsidiary
of
B.C.
Electric
Co.
Ltd.,
namely,
Western
Development
and
Power
Ltd.
These
economic
circumstances,
the
appellant
alleged,
in
evidence,
were
the
advent
of
oil
and
gas
in
British
Columbia,
the
establishment
of
Lafarge
Cement
Co.
Ltd.
in
the
Fraser
River
in
Vancouver,
which
put
back
ten
years
the
possibility
of
establishing
another
cement
plant
in
British
Columbia
and
the
fact
that
the
Morden
Dam
on
the
Fraser
River
was
not
proceeded
with
which
alone
the
appellant
alleges
would
have
provided
sufficient
market
to
have
warranted
a
cement
plant
at
the
Hat
Creek
Mine.
The
appellant
also
argues
that
although
there
were
no
large
expenditures
on
the
property,
the
explanation
given
by
Dr.
Alexander
Smith
and
Mr.
R.
W.
Wilson
and
Mr.
Keith
Wilson
was
that
it
was
primarily
necessary
to
find
a
market
for
the
coal
and
that
the
existence
of
the
resources
was
sufficiently
well
known,
and
as
a
consequence
it
was
good
business
not
to
foolishly
or
unwisely
spend
such
money
on
development
and
exploration
of
the
property
at
that
time;
in
addition,
there
was
no
evidence
that
there
was
any
lack
of
financial
help
in
putting
the
mine
into
production.
On
the
contrary,
the
Ventures
Group,
at
least,
had
spent
substantial
monies
on
other
properties
and
were
in
a
position
to
spend
it
on
the
Hat
Creek
property
;
and
the
evidence
of
Mr.
Keith
Wilson
was
that
public
financing
was
available
if
the
market
warranted.
bringing
this
mine
into
production
at
any
time.
The
appellant
also
argued
that
going
into
liquidation
after
the
sale
of
this
asset
to
B.C.
Electric
Co.
was
a
logical
step
because
the
appellant
had
no
other
physical
assets.
The
appellant
also
argued
that
the
valuation
put
on
it
by
the
parties
in
1947,
namely,
$1,300,000
pursuant
to
that
agreement
of
January
13,
1947,
and
carried
through
by
the
implementation
of
the
agreement
dated
September
17,
1951,
Exhibit
A-69,
whereby
the
shares
were
issued
for
a
value
on
the
books
of
the
appellant
company
of
$1,300,000
was
a
realistic
value
in
view
of
the
selling
price
in
1960
to
the
B.C.
Electric
Co.
by
way
of
its
subsidiary
Western
Development
and
Power
Co.
Ltd.
The
appellant
also
argues
that
the
real
estate
cases
have
no
application
because
of
a
certain
peculiar
aspect
of
them
which
has
no
relevance
to
a
mine
property,
viz.,
a
real
estate
parcel
can
be
broken
up
and
sold
in
parcels
whereas
a
mine
has
no
market
other
than
as
an
entity.
Counsel
for
the
appellant
submitted
that
it
was
not
dealing
in
a
mine
(Sutton
Lumber
v.
M.N.R.,
[1953]
2
8.C.R.
77
;
[1953]
C.T.C.
237;
~W
am
ford
Court
(Canada)
Ltd.
v.
M.N.R.,
30
Tax
A.B.C.
417)
;.
or
alternatively,
if
the
receipt
from
the
sale
to
Western
Development
and
Power
Co.
Ltd.
was
income
then
the
fair
market
value
of
the
mine
asset
when
acquired
by
the
appellant
in
1951
(or
also
in
1947)
was
$1,300,000.
Counsel
for
the
respondent
submitted
that
there
were
two
questions
to
be
decided,
viz.,
firstly,
whether
an
adventure
or
concern
in
the
nature
of
trade
existed
in
the
matter
of
the
disposal
of
the
Hat
Creek
Mine,
or
secondly,
if
an
adventure
or
concern
in
the
nature
of
trade
did
exist,
then
what
was
the
correct
valuation
in
law
of
the
coal
deposits
at
the
time
of
the
acquisition
of
them
by
the
appellant.
In
support
of
his
submission
that
this
transaction
constituted
an
adventure
or
concern
in
the
nature
of
trade,
counsel
for
the
respondent
referred
to
Exhibit
A-10
which
was
an
article
by
Mr.
Campbell,
an
officer
and
engineer
of
Wilson
Mining
Corporation
Ltd.
which
sets
out
that
there
was
knowledge
of
ore
body
in
the
Hat
Creek
Mine
before
1900;
submitted
that
the
appellant
and
its
officers
and
directors
knew
of
the
restricted
market
for
coal,
especially
lignite
coal,
at
all
material
times;
submitted
that
the
argument
of
appellant
that
it
was
frustrated
in
its
efforts
to
develop
the
mine
was
without
substance
and
that
on
the
evidence
there
was
no
such
original
intention,
but
instead
the
original
intention
which
continued
was
to
sell
the
mine;
submitted
that
the
fact
that
the
Ventures
Group
spent
no
money
in
developing
this
mine
but
handed
the
problem
over
to
the
Wilson
group
who
also
spent
no
money
on
developing
it,
but
instead
devoted
their
efforts
to
the
disposal
of
it,
rebutted
any
suggestion
that
this
mine
should
be
categorized
as
a
capital
asset
of
the
appellant.
On
this
evidence
the
Court
must
determine
whether
the
assessment
made
by
the
Minister,
Exhibit
1,
is
correct
in
law.
The
question
for
consideration,
therefore,
is
whether
on
the
facts
as
disclosed
by
the
evidence
at
this
trial
the
profits
realized
from
the
sale
by
the
appellant
to
Western
Development
and
Power
Ltd.,
which
it
acquired
in
1951
and
which
it
sold
in
1960,
are
profits
from
a
business
or
property
within
the
meaning
of
Sections
3
and
4
of
the
Income
Tax
Act,
and
the
extended
meaning
of
‘‘business’’
as
defined
in
Section
139(1)
(e)
or
as
submitted
by
the
respondent
whether
this
Hat
Creek
property
was
acquired
by
the
appellant
for
the
purpose
of
developing
it
as
a
mine
and
that
it
was
only
because
this
purpose
was
frustrated
by
economic
factors
in
1956
more
particularly
set
out.
above
in
the
resume
of
the
evidence
that
the
Hat
Creek
Mine
was
sold
realizing
therefrom
a
fortuitous
profit
by
way
of
capital
gain.
In
this
case
as
in
all
these
cases,
the
test
of
whether
there
is
an
adventure
or
concern
in
the
nature
of
trade
is
objective
and
the
intention
or
motive
of
the
taxpayer
although
relevant
cannot
alone
determine
what
the
acts
amounted
to
and
in
some
cases
may
be
given
very
little
weight.
Whether
the
alternative
taken
by
thé
taxpayer
in
the
event
that
his
preferred
intention
becomes
for
some
reason
unrealizable,
is
taxable
or
not
depends
on
whether
the
evidence
discloses
that
this
chosen
alternative
is
or
is
not
the
operation
of
a
trade.
This
situation
arises
in
all
cases
where
assets
such
as
this
are
purchased
for
the
alleged
purpose
of
using
the
same
to
create
an
investment
and
there
is
a
secondary
alternative
intention
which
by
proper
evidence
can
be
inferred.
The
evidence
in
a
case
such
as
this
must
of
necessity
detail
all
the
surrounding
circumstances
including
the
knowledge
of
the
taxpayer,
the
skill
of
the
taxpayer
or
any
other
fact
or
circum-
stances
sufficient
to
indicate
whether
or
not
the
purchasing
of
the
assets
was
a
speculation
looking
to
resale
which
must
have
been
in
the
contemplation
in
the
event
that
the
preferred
intention
could
not
be
carried
out.
In
Regal
Heights
Limited
v.
M.N.R.,
[1960]
S.C.R.
902;
[1960]
C.T.C.
384,
Judson,
J.
stated
at
pages
905,
388:
‘‘
There
is
no
doubt
that
the
primary
aim
of
the
partners
in
the
acquisition
of
these
properties,
and
the
learned
trial
judge
so
found,
was
the
establishment
of
a
shopping
centre
but
he
also
found
that
their
intention
was
to
sell
at
a
profit
if
they
were
unable
to
carry
out
their
primary
aim.”
In
this
particular
case,
in
my
opinion,
there
is
no
doubt
that
the
Wilsons,
especially
Mr.
KR.
KR.
Wilson,
who
was
an
expert
in
the
coal
mining
field
along
with
other
employees
of
the
Wilson
Mining
Corporation
Ltd.,
did
know
in
fact
that
in
1947
and
1951
it
would
be
most
difficult
to
market
successfully
lignite
coal
from
the
Hat
Creek
Coal
Mine.
It
must
be
concluded
that
they
were
fully
aware
of
the
fact
that
the
oil
and
gas
industry
was
developing
in
Alberta
and
in
British
Columbia
and
would
be
competing
and
that
the
market
for
coal
was
dwindling.
Indeed,
the
Wilson
Mining
Corporation
Ltd.
was
the
operator
of
a
coal
mine
at
that
time,
and
its
market
was
declining
and
it
has
since
ceased
operation.
During
the
material
times,
it
was
undoubtedly
within
their
knowledge
that
the
market
for
coal
in
general
was
most
restricted
and
in
this
particular
case
the
market
for
this
low
grade
lignite
coal
was
even
more
restricted.
The
appellant’s
knowledge
and
intentions
at
the
material
times
(which
I
find
was
the
knowledge
of
its
directors,
namely,
the
Wilsons
and
Dr.
Alexander
Smith,
who
was
also
a
director
of
the
Ventures
Group,
following
the
judgment
of
Judson,
J.
in
Regal
Heights
Ltd,
v.
M.N.R.
(supra)
where
it
was
held
that
the
knowledge
and
intention
of
the
appellant
were
throughout
its
existence
identical
with
those
of
its
promoters
who
later
became
its
directors)
was
that
this
Hat
Creek
Coal
Mine
was
known
to
be
a
vast
resource
from
before
1900
that
any
possible
market
at
that
time
was
very
uncertain,
and
therefore
the
probability
of
it
being
developed
as
a
mine
by
them
was
remote.
When
it
was
acquired
in
1944
by
the
Ventures
Group
through
St.
Eugene
Mining
Corporation
Ltd.
and
subsequently
made
the
subject
of
the
agreement,
Exhibit
A-16,
in
1947,
between
St.
Eugene
Mining
Corporation
Ltd.
and
Wilson
Mining
Corporation
Ltd.,
it
was
known
to
the
parties
that
this
resource
might
not
be
converted
into
profit
by
development
because
of
lack
of
market.
The
Ventures
Group,
through
St.
Eugene
Mining
Corporation
Ltd.,
although
spending
large
sums
of
money
on
other
mines,
spent
nothing
on
the
Hat
Creek
Mine.
Instead,
they
handed
it
over
to
the
Wilson
group
who
were
expert
in
the
coal
mining
field
but
they
declined
to
spend
any
sums
on
it
for
development
as
a
mine
but
instead
sought
to
search
out
a
market.
It
is
probably
true,
according
to
the
evidence,
and
many
exhibits
that
were
filed
to
substantiate
it
that
the
intention
of
the
appellant
may
have
been
incidentally
to
develop
this
as
a
mine
but
the
main
intent
which
I
find
on
the
evidence
was
to
sell
the
asset
either
outright
or
on
some
royalty
basis
or
by
some
other
contractual
arrangement
of
substantially
the
same
category
of
transaction.
This,
in
my
view,
was
an
adventure
or
concern
in
the
nature
of
trade
within
the
meaning
of
the
Income
Tax
Act
and
the
profit
therefrom
is
income
within
the
meaning
of
the
Act.
Having
so
found,
it
becomes
necessary
to
ascertain
what
is
the
taxable
income
of
the
appellant
for
the
taxation
year
1960.
To
ascertain
this,
it
is
necessary
to
determine
what
was
the
fair
market
value
within
the
meaning
of
the
Act
either
in
1947
or
1951
when
this
asset
was
acquired
by
the
appellant.
The
fair
market
value
is
conceded
as
the
amount
arrived
at
in
an
arm’s
length
transaction
between
a
vendor
willing
to
sell
and
a
purchaser
willing
to
buy.
The
relevant
statute
was
the
1951
Income
Tax
Act.
The
problem
of
determining
fair
market
value
in
this
particular
transaction
is
one
of
considerable
difficulty
in
view
of
the
evidence
adduced.
While
recognizing
that
the
onus
is
on
the
appellant
to
prove
on
the
balance
of
probabilities
that
the
assessment
is
wrong,
I
am
of
opinion
in
this
case
that
it
has
done
so.
The
evidence
is
very
slight
but
of
necessity
it
must
be
so
in
a
case
such
as
this.
Certainly
in
the
year
1947
when
(Exhibit
A-16)
the
agreement
was
entered
into,
what
was
the
fair
market
value
of
the
shares
was
a
difficult
thing
to
determine.
The
St.
Eugene
Mining
Corporation
Ltd.
had
purchased
the
Hat
Creek
Mine
in
1944
for
$38,000.
It
did
agree
to
sell
the
mine
to
the
company
which
subsequently
became
the
appellant.
Pursuant
to
the
agreement
dated
January
13,
1947,
Exhibit
A-16,
for
the
mine
it
did
get
900.000
shares
of
the
par
value
of
$1
from
the
appellant
company
:
and
Wilson
Mining
Corporation
Ltd.
did
by
that
agreement
of
January
13,
1947,
agree
to
buy
400,000
such
shares
in
the
appellant
company
at
814¢
per
share;
and
there
was
an
option
agreement
entered
into
between
St.
Eugene
Mining
Corporation
Ltd.
and
Wilson
Mining
Corporation
Ltd.
in
that
same
agreement
whereby
the
latter
obtained
an
option
to
buy
one-half
the
shares
to
be
issued
to
St.
Eugene
Mining
Corporation
Ltd.
for
a
price
which
worked
out
to
approximately
4.1^
per
share.
However,
none
of
these
facts,
in
my
opinion,
determine
what
was
the
fair
market
value
in
1947.
In
1947,
St.
Eugene
Mining
Corporation
Ltd.
and
the
appellant
were
not
at
arm’s
length
when
this
agreement
was
made;
but
St.
Eugene
Mining
Corporation
Ltd.
and
Wilson
Mining
Corporation
Ltd.
were
dealing
at
arm’s
length
within
the
meaning
of
the
Act.
On
these
facts
the
problem
still
is
what
was
the
fair
market.
value.
of
the
Hat
Creek
Mine
at
that
time.
In
the
determination
what
was
the
fair
market
value
in
1951,
when
the
shares
were
issued
to
St.
Eugene
Mining
Corporation
Ltd.
01
'its
nominees
and
to
Wilson
Mining
Corporation
Ltd.
t
to
clause
2
of
the
said
agreement
dated
September
17,
1951,
Exhibit
A-69,
probably
the
most
cogent
evidence
that
is
available
was
the
actual
price
paid
for
this
asset
by
Western
Development
and
Power
Ltd.,
a
subsidiary
of
B.C.
Electric
Co.
Ltd.,
pursuant
to
its
option
agreement
entered
into
on
August
7,
1957,
which
it
subsequently
exercised
1
in
1960.
It
is
to
be
noted
that
in
1957,
when
the
option
agreement
was
entered
into
between
the
appellant
and
Western
Development
and
Power
Ltd.
the
knowledge
of:
the
extent
of
the
reserves
was
that
obtained
from
the
appellant
and
Wilson
Mining
Corporation
Ltd.
which
was
to
the
effect
that
the
reserves
were
something
under
100,000,000
tons
of
ore.
That
was
the
known
state
of
the
facts
on
which
the
price
was
fixed.
The
price,
it
turned
out,
was
$1,570,000
plus
320,000
shares
of
Van-Tor
Oils
and
Exploration
Ltd.
(These
shares
the
Minister
subsequently
found
to
have
a
value
of
$108,800.)
The
total
market
price
determined,
therefore,
by
that
agreement
was
$1,678,800.
Subsequent
to
this,
as
a
result
of
the
exploratory
work
done
by
Western
Development
and
Power
Ltd.
during
the
option
period
and
the
extensions
to
the
option
period,
the
extent
of
the
mine
deposit
was
found
to
be
700,000,000
tons.
In
view
of
this,
considering
all
the
other
evidence,
I
am
of
the
opinion
that
the
fair
market
value
for
these
shares
at
the
material
time,
viz.,
1951,
was
$1,300,000,
which
was
the
value
placed
on
this
mine
by
the
directors
of
the
appellant
at
the
material
time.
And
during
the
period
1951
and
1960
the
value
of
this
mine
asset
did
not
increase.
For
this
reason,
I
am
of
the
opinion
that
the
income
of
the
appellant
for
the
taxation
year
which
was
subject
to
tax
is
the
difference
between
the
proceeds
of
the
sale
of
the
mine
to
Western
Development
and
Power
Ltd.
which
appears
to
be
$1,570,000
plus
$108,800
being
the
value
of
the
320,000
shares
of
Van-Tor
Oils
&
Exploration
Ltd.,
making
a
total
of
$1,678,000
less
the
initial
fair
market
value,
so
found,
of
the
property
acquired
by
the
appellant
in
1951
in
the
sum
of
$1,300,000
plus
the
development
and
carrying
costs
of
$13,504.49
or
a
total
of
$1,313,504.49
which
results
in
a
difference
of
$365,295.51.
The
appeal,
therefore,
is
allowed
in
part
and
the
matter
submitted
back
to
the
Minister
for
re-
assessment
not
inconsistent
with
these
reasons.
The
appellant
shall
be
entitled
to
its
costs
of
this
appeal.
Judgment
accordingly.