Dobieco Limited v. Minister of National Revenue, [1965] CTC 507, 65 DTC 5300

CARTWRIGHT, J. (all concur) :—This is an appeal from a judgment of Cattanach, J. dismissing an appeal from the appellant’s assessment for its taxation year ending March 31, 1956.

While additional matters were dealt with in the Court below the appeal to this Court raised only the two following questions :

(i) Whether the learned trial judge erred in finding that the appellant was not entitled in valuing its 1956 closing inventory of securities to make a deduction for known costs of sale of items included therein at market value, viz. $21,105.56 for brokerage payable on sale, and $1,648.23 for security transfer tax payable on sale, and

(ii) Whether the learned trial judge erred in finding that the appellant was not entitled to write down from $80,568.38 to $1 its inventory asset consisting of its interest in a syndicate, referred to as ‘the Jerd Syndicate”, in the course of valuing its closing inventory on March 31, 1957 and in holding that the loss of $80,567.38, which was admittedly sustained by the appellant in respect of this syndicate, should be treated as having been sustained in a later year.

After some argument had been addressed to us on the first of these points it was abandoned by counsel for the appellant because it appeared that, even if the argument in respect of it were successful, the amount of the deduction claimed would be off-set by an error in calculation in respect of other items in the closing inventory. I mention this in order to make it clear that this question having been withdrawn from our consideration we express no opinion upon it.

Turning to the second question, it is common ground that the appellant’s interest in the Jerd Syndicate was an inventory asset, that in computing income for the taxation year ending March 31, 1957, the appellant was entitled to value it at its cost or its fair market value whichever was lower, that the cost of the asset to the appellant was $80,568.88 and that in its balance sheet for the year ending March 31, 1957, the appellant did in fact value it at $1.

The question becomes one of fact, whether the evidence established, on a balance of probabilities, that on March 31, 1957, the fair market value of the asset did not exceed $1.

The appellant was incorporated on December 23, 1954. Prior to this date a partnership known as Draper Dobie and Company carried on business in two branches, an underwriting and trading branch and a commission branch. On its incorporation the appellant took over the underwriting and trading business formerly carried on by the partnership. Among the assets acquired from the partnership was the interest in the Jerd Syndicate. In March, 1955, the partnership had contributed $50,000 to the Syndicate. The appellant made further contri- butions bringing the total investment up to $80,568.38. The dates of these further contributions are not fixed with precision but it is clear that the latest of them was prior to March 31, 1957.

The partners in Draper Dobie and Company included Mr. H. W. Knight and Mr. Geo. W. Gooderman who are now president and vice-president of the appellant.

Before the appellant was incorporated, Mr. Robert Bryce, a mining engineer and promoter and manager of mining and oil exploration and development companies was interested in an area in Alberta adjacent to the British Columbia border which he hoped would prove to be oil producing. He first obtained a reservation which he later converted into lease holdings. It was a condition of the leases so obtained that Mr. Bryce should expend $200,000 in exploration. The area consisted of 40,000 acres in all, but a 25% interest in it had been acquired by another party. The expenditure of $200,000 by Mr. Bryce would entitle him to a 75% interest so that he would own the leasehold in 80,000 acres while the other party owned 10,000 acres. The area of 40,000 acres was unsurveyed. The 10,000 acres owned by the other party consisted of a corner of each section, the balance being owned by Mr. Bryce. Because of the fact that the area was unsurveyed it followed that the limits of the respective holdings of Mr. Bryce and the other party could not be clearly defined.

In order to raise the amount of $200,000 which was to be expended as a condition of the lease, Mr. Bryce formed a syndicate. Mr. H. W. Knight, Mr. Knight’s father and Mr. Gooderman personally participated in this syndicate. The amount of $200,000 was raised through the syndicate so formed and was expended in the drilling of an oil well on the property. The amount of $200,000 was exhausted in drilling without oil being discovered and a company was formed under the name of Jerd Petroleum Company, Limited which then became the owner of the leasehold interest in the 80,000 acres. The members of the syndicate became shareholders in Jerd Petroleum Company, Limited in proportion of their participation in the syndicate and the syndicate was dissolved.

In order to finance further drilling, Mr. Bryce, who has been the prime mover throughout, formed a second syndicate. This second syndicate is the Jerd Syndicate with which we are concerned. Draper Dobie and Company was a member of this syndicate and as indicated above made an expenditure of $50,000 as its proportionate share. It was this interest which was acquired by the appellant from the partnership.

The members of the Jerd Syndicate were Mr. Bryce, 10%, Mr. Wayne, 10%, Amerex Oil, 20%, Decalta Oil, 30% and the appellant, 30%. There were subsequent changes in proportion and membership which are not material but the interest of the appellant remained a constant 30%. Jerd Petroleum Company, Limited, owned a half interest in this second venture and contributed half of the funds expended and the Jerd Syndicate owned the remaining half interest and was obligated to contribute one half of the funds to be raised. Jerd Petroleum Company, Limited was not a member of the Jerd Syndicate.

The syndicate agreement was not reduced to writing. The custom in the trade was to conduct such arrangements orally and if necessity should arise to commit the arrangement to writing at a later time. It was understood, however, that each member of this syndicate was required to put up an amount of money in proportion to his membership interest each time an assessment was called and if the member did not meet the assessment then the member’s interest was lost and the remaining members were to be offered the opportunity to take up the interest of the member in default.

The purpose of the appellant in entering into the Jerd Syndicate was twofold, first, if oil were discovered the appellant would participate in the benefits thereof and second, if success attended the venture, there was a tacit understanding, though an unwritten one, that the appellant would be given the first refusal to underwrite the shares in any company which might be formed to acquire and operate the oil or gas field.

Jerd Syndicate, in conjunction with Jerd Petroleum Company, Limited, sank the well to a depth of 4,779 feet. At that depth harder rock was encountered than had been anticipated. A heavier drill would be required to penetrate deeper, but because of the cost involved, drilling was stopped on March 9, 1956 and has not since been resumed.

At the time drilling ceased the syndicate’s funds on hand were exhausted, but the obligation to pay the annual lease rental of $30,000, being $1 an acre, continued, a payment in that amount falling due on July 4th of each year. Jerd Petroleum Company, Limited was responsible for $15,000 of the annual rental and the Jerd Syndicate was responsible for an equal amount. The appellant’s proportionate share of this liability was $4,500 for July 4, 1957. The appellant did not pay this amount into the syndicate.

Mr. Bryce, in his capacity as head of the Jerd Syndicate, called on Mr. Knight in March, 1957, for the purpose of obtain- in g the appellant’s payment of $4,500. Mr. Knight as president of the appellant, informed Mr. Bryce that the appellant did not intend to contribute this or any further sum. The appellant’s interest in the Jerd Syndicate was not terminated upon this default as it might have been under the terms of the syndicate agreement and the appellant continued to be looked upon as a member of the syndicate by the other members. The syndicate treated the appellant as a member which was indebted to the syndicate in the amount of $4,500. A further payment of rent was falling due on July 4, 1958. In March, 1958, Mr. Bryce again approached Mr. Knight for the appellant’s contribution. Mr. Knight reiterated the appellant’s previous decision to participate no further in the Syndicate and offered to sell the appellant’s interest therein to Mr. Bryce for $1 and the assumption of the appellant’s outstanding obligation to the Syndicate of $4,500 and of the further obligation of $4,500 becoming due on July 4, 1958. Mr. Bryce consulted the other members of the Jerd Syndicate who agreed to Mr. Bryce purchasing the appellant’s interest.

On June 5, 1958, the appellant executed an agreement for sale of its interest in the Jerd Syndicate for the consideration of $1 in cash and the assumption of the appellant’s outstanding obligation of $4,500 and a future obligation of $4,500 due on July 4, 1958.

The consideration so paid was $4,501 but, as is pointed out by the learned trial Judge, this has no bearing on the amount of the appellant’s alleged loss of $80,567.38 because if the obligation of $4,500 had been paid by the appellant then the loss of $80,567.38 claimed would have been increased by an amount of $4,500 and when the monetary consideration received was deducted from that greater figure, the amount of the loss would remain constant at $80,567.38.

The learned trial judge after setting out the facts recited above went on to hold that the appellant had suffered a loss of $80,567.38 which was properly deductible for income tax purposes and that it remained to decide when the loss occurred. The reasons of the learned trial judge continue as follows:

‘While it was possible that the appellant’s interest in the syndicate might have been forfeited in March, 1957 by reason of the appellant’s failure to pay its assessment of $4,500 in accordance with the verbal syndicate agreement, nevertheless, the appellant’s participation was not ended at that time. The syndicate did not act upon the default, but continued to treat the appellant as a member indebted to the syndicate in the amount of the default. The appellant, on its part, also considered itself a member otherwise it would not have been able to sell its interest to Mr. Bryce as it did on June 5, 1958, some fourteen months later. In my opinion the loss was not in the fiscal year ending March 31, 1957, but in the 1958 (sic) taxation year.’’

With the greatest respect to the learned trial judge I find myself in agreement with the submission of counsel for the appellant that his reasoning leads to the conclusion that as a matter of accounting the realized trading loss occurred in June of 1958 but leaves unanswered the question whether the fair market value of the asset, admittedly then still owned by the appellant, did not exceed $1 on March 31, 1957.

The evidence relevant to this question consists of the inferences to be drawn from the recital of the facts set out above from the testimony at the trial of Mr. H. W. Knight, Mr. Greenwood, who is the auditor of the appellant, and Mr. Bryce.

I have considered with care all the evidence of these witnesses bearing on this point and have reached the conclusion that it should be found as a fact that by March 31, 1957, the fair market value of the appellant’s interest in the Jerd Syndicate did not exceed $1.

In coming to this decision I am influenced particularly by the following matters.

(a) Prior to March 31, 1957, Mr. Knight had clearly formed the opinion that the asset had ceased to be of any value and was willing that the appellant should forfeit it rather than make any further contribution and he so advised Mr. Bryce.

(b) The auditor of the company after going into the matter with Mr. Knight shared his opinion and certified the appellant’s balance sheet accordingly.

(c) Drilling on the Syndicate property had ceased on March 9, 1956, and no further drilling had been done up to March 31, 1957, or indeed up to the date of the trial, in June, 1962.

(d) No favourable results had been obtained from the drilling that was done.

e) The funds of the Syndicate were exhausted but the liability to pay rentals continued.

(f) The appellant in fact sold its interest for $1 in June, 1958, and nothing had occurred between March 31, 1957, and June, 1958, to alter the market value of the interest.

As against all this there was the opinion of Mr. Bryce that the property was still worth holding, but this opinion has not been vindicated by subsequent events and does not appear to have been shared by the other members of the Syndicate, none of whom were willing to take over their proportionate share of the interest which the appellant relinquished.

Considering the whole of the evidence it appears to me to be shown that on the balance of probabilities the correct finding is that on March 31, 1957, the fair market value of the appellant’s interest in the Syndicate was not more than $1.

For these reasons I would allow the appeal, set aside the judgment of the Exchequer Court and direct that the assessment be referred back to the respondent to be amended in accordance with these reasons. While the appellant raised other points in the Court below and one other point in this Court on which it did not succeed it has succeeded on a substantial issue and is entitled to its costs in this Court and in the Exchequer Court. FALCONBRIDGE NICKEL MINES, LTD., Appellant,

and

MINISTER OF NATIONAL REVENUE, Respondent.

Supreme Court of Canada (Abbott, Judson, Ritchie, Hall and Spence, JJ.), December 14, 1965, on appeal from a judgment of the Exchequer Court, reported [1965] C.T.C. 82.

Income tax—Federal—Income Tax Act, R.S.C. 1952, c. 148—Section 83A(7)—S.C. 1949 (2nd Sess.), c. 25—Section 53(4)—S.C. 1955, c. 54— Section 22(1)—Mining and exploration company — Deduction for prospecting, exploration and development expenses.

In issue was the deductibility or otherwise of various items of expenditures incurred in 1950, 1951 and 1952 by the taxpayer, a mining and exploration company. These items were numbered 1 to 12, as identified in the appeal to the Exchequer Court. In cross appeals from the judgment of the latter the taxpayer was appealing the disallowance of items 1, 2, 5, 6, 7, 8, 9, 10 and 12 and the Minister was appealing the allowance of items 3, 4 and 11. The issue in all cases was twofold: whether the expenditure fell within the permissive provisions of Section 53(4) and, if so, whether its deduction was nevertheless prohibited by Section 83A (7).

Items 1, 5, 9, 10 and 12 had been allowed by the trial judge on the ground that the taxpayer had not “undertaken” to incur them in a legally enforceable agreement and that accordingly the prohibition in Section 88A (7) failed to apply to them. Items 2 and 6 had not, it was held, been made pursuant to any agreement at all, with the same result. In respect of items 7 and 8 the receipt of shares in a company to be formed was held not equivalent to “a right to purchase shares” in such a company within the meaning of Section 83A(7) (c), so that the expenditures were not precluded thereby. The disallowance of items 3 and 4 had been confirmed on the ground that the taxpayer was entitled to reimbursement, or equivalent, and that they were therefore not actually “incurred” by the taxpayer as required by Section 53(4). Item 11 had been similarly disallowed as not expended by the taxpayer on its own behalf within the meaning of that section.

HELD (per curiam) :

(i) That the word “undertook” in Section 83A(7) did not imply a legally enforceable obligation to undertake (items 1, 5, 9, 10 and 12) ;

(ii) That expenditures made prior to the formal execution of the agreement made with respect thereto were contemplated by and covered by that agreement (items 2 and 6);

(iii) That the application of the taxpayer’s expenditures on the purchase of shares pursuant to agreement was not equivalent to reimbursement of the expenditures and they could not be said not to have been “incurred” by the taxpayer nor could the taxpayer be regarded as an agent or contractor for somebody else in respect thereof (items 3, 4 and 11) ;

(iv) That the taking of shares in a new corporation to be formed was not susceptible of differentiation from “a right to purchase” such shares within the meaning of Section 83A(7) (c) (items 7 and 8) ;

(v) That all the items of expenditure were disallowed by Section 83 A (7) ;

(vi) That the appeal of the taxpayer be dismissed;

(vii) That the appeal of the Minister be allowed except as to item 5, part of item 6 and item 9, as to which the Minister had made admissions, agreeing to vary the assessments.

CASES REFERRED to:

Okalta Oils Ltd. v. M.N.R., [1955] Ex. C.R. 66; [1955] C.T.C.

39; [1955] S.C.R. 824; [1955] C.T.C. 271;

Corporation of Birmingham v. Barnes, 19 T.C. 195.

Allan Findlay, Q.C., and A. 8S. Kingsmill, for Falconbridge Nickel Mines Ltd.

G. W. Ainslie and D. G. H. Bowman, for the Minister.

JUDSON, J. (all concur) :—The issue in this appeal is the claim of Falconbridge Nickel Mines Limited to deduct from its income for the years 1950, 1951 and 1952 certain prospecting, exploration and development expenses. Throughout the proceedings the expenses have been classified into 12 items and I will maintain that classification. The money was all spent on properties owned by others under the terms of written agreements, which I shall have to analyze later. To obtain these deductions Falconbridge must show that they come within Section 53(4) of the 1949 income tax amending Act, 1949 (Second Session), ¢. 25. This section must be read with an explanatory amendment enacted in 1955 and made to apply retroactively to the years in question (Statutes of Canada 1955, c. 54, Section 22(1)).

In full the sections read:

“53. (4) A corporation whose chief business is that of mining or exploring for minerals may deduct, in computing its income for the purpose of the said Act for the year of expenditure, an amount equal to all prospecting, exploration and development expenses incurred by it, directly or indirectly, in searching for minerals during the calendar years 1950 to 1952, inclusive, if the corporation files certified statements of such expenditures and satisfies the Minister that it has been actively engaged in prospecting and exploring for minerals by means of qualified persons and has incurred the expenditures for such purposes.

83A. (7) For the purposes of this section and section 53 of chapter 25 of the statutes of 1949 (Second Session), it is hereby declared that expenses incurred by a corporation, association, partnership or syndicate on or in respect of exploring or drilling for petroleum or natural gas in Canada or in searching for minerals in Canada do not and never did include expenses so incurred by that corporation, association, partnership or syndicate pursuant to an agreement under which it undertook to incur those expenses in consideration for

(a) shares of the capital stock of a corporation that owned or controlled the mineral rights,

(b) an option to purchase shares of the capital stock of a corporation that owner or controlled the mineral rights, or

(c) a right to purchase shares of the capital stock of a corporation that was to be formed for the purpose of acquiring or controlling the mineral rights.’’

I will begin with an analysis of the Gull Lake and the Gullbridge agreements. The properties on which these expenditures were made were owned by Newfoundland Gull Lake Mines Limited. That company and Falconbridge on August 17, 1950, made an agreement, which I now summarize.

(a) Falconbridge agreed to pay to Gull Lake $2,500 for an exclusive option to purchase certain mining claims;

(b) Falconbridge was to have 60 days to make an examination of the mining claims;

(e) Falconbridge during the currency of the option was to have exclusive possession of the mining claims;

(d) If Falconbridge before the expiry of the 60 days notified Gull Lake that it wished to proceed with the agreement, a new company was to be incorporated ;

(e) Upon the incorporation of the new company, Gull Lake and Falconbridge would transfer the mining claims to the new company and, as consideration for the transfer, the new company would allot to Gull Lake 500,000 of its Class ‘‘A’’ shares and would allot to Falconbridge such number of its Class ‘‘B’’ shares as could be purchased, at five cents per share, by a payment equal to $2,500 plus the amount that Falconbridge had expended in connection with the examination of the claims;

(f) After the incorporation of the new company, the parties would cause the new company to enter into an agreement with Falconbridge under which Falconbridge would subscribe for shares in the new company on a specified basis and the new company would grant to Falconbridge an exclusive right or option to purchase a specified number of its Class ‘‘B’’ shares;

(g) Falconbridge was under no obligation to cause any examination to be made, to expend any moneys or to perform any other act other than the payment of the $2,500.

Faleonbridge notified Gull Lake on October 20, 1950, that it wished to proceed with the agreement, with the result that a new company, Gullbridge Mines Limited, was incorporated on November 14, 1950, and on December 27, 1950, Falconbridge made with it the agreement contemplated in the Gull Lake agreement. These are the features of this Gullbridge agreement. with which we are concerned :

(a) Faleonbridge subscribed and agreed to purchase 60,241 Class ‘‘B’’ shares of Gullbridge at a price of 5 cents per share and 119,880 Class ‘‘B’’ shares for 10 cents per share. This was in accordance with the Gull Lake agreement and was an application of the $2,500 and the expenses to date on the purchase of shares.

(b) Gullbridge granted Falconbridge 7 separate options to purchase a total of 2,059,638 Class B shares at specified times and prices.

The following clause gave Falconbridge the right to pay for the shares under option by the application of the monies expended for exploration and development expenses :

‘‘4 The parties hereto agree that instead of the Optionee (Faleonbridge) taking up and paying for the shares the Optionee (Falconbridge) may expend the monies required to keep this option in force on diamond drilling and on other exploration, development and mining work on the said mining claims . . . and the Optionee (Falconbridge) shall be reimbursed for all expenditures made by it on behalf of the Optionor (Gullbridge), such reimbursement being in the form of shares of the Optionor issued in accordance with the terms of this agreement.”

J ULLBRIDGE

There are four items of expenditure relating to those agreements :

II. $ 4,953.73 From November 14, 1950, Disallowed Allowed

to December 31, 1950

III. $247,243.88 1951 Disallowed Disallowed

IV. $ 56,047.26 1952 Disallowed Disallowed

The Minister appeals the allowance of the first two items and Falconbridge appeals the disallowance of the second two. Falconbridge applied all these expenditures on the purchase of shares under option at the specified prices.

On items I and II the learned trial judge held:

“In my view, this was not an agreement by which the appellant ‘undertook’ to incur the expenses in question if the word ‘undertook’, as used in subsection (7) of Section 83A, implies, as I think it does, a legal liability enforceable by legal action

This new company was incorporated with the name of Gullbridge Mines Limited on November 14, 1950 and the expenditures in question were incurred between that date and the end of that year. It would appear that these expenditures were not made pursuant to, or contemplated by, an agreement. What I have said with reference to the first item therefore applies with even greater force to the second item.”

On items III and IV the learned trial judge held :

“On the other hand, subsection (4) of Section 53 does require that the expenditures must have been ‘incurred’ by the taxpayer before the taxpayer can deduct them under that subsection. I think it must follow from this that expenditures must have been incurred by the taxpayer on its own account— that is, as a principal and not merely as an agent or contractor for somebody else.

. it is sufficient to say that in my view an exploration company cannot be said to be carrying on such a programme on its own behalf when it is carrying it on under a contract under which it is to be reimbursed for the total expenses of the programme as such or under which it carries on the programme as a means of obtaining a credit for the amount of the expenses against an amount which it would otherwise have to pay in cash.??

The Minister argues here that the learned trial judge was correct on items III and IV and that there is no difference between these and items I and II. The first question is were any of these items within the terms of Section 53(4)? Falconbridge undoubtedly spent its own money for prospecting, exploration and development. The first item was spent on the property when it belonged to Gull Lake, the next three on the property when it belonged to Gullbridge. When it expended this money it did not intend to confer a gratuitous benefit on these companies. Unless it took up the options this is what it would have been doing.

The legal position of Falconbridge in making these expenditures is easily defined. First, it was under no legal obligation to make any of them. Second, it was under no legal obligation to apply them on the purchase of shares under option although it had the right to do so. Third, it did not make them as agent or contractor for anyone. I cannot accept the characterization of the relationship found later in the judgment of the Exchequer Court as that of agent or contractor on behalf of the owner.

As to the first two items, I differ from the opinion of the learned trial judge. I do not think that the word ‘‘undertook”’ as used in Section 83A(7) means that there must be a legal liability enforceable by legal action. The words “pursuant to an agreement under which it undertook to incur those expenses in consideration for, etc.” mean no more than this. If Falconbridge takes it upon itself to spend this money on the property of another and it does so pursuant to an agreement which gives it that right, then the case is within Section 83A(7) if the consideration is as stated in the section.

Further, the trial judgment holds that the expenditures under item II were not made pursuant to any agreement. The Gullbridge agreement is dated December 27, 1950, and the money was spent between the date of incorporation of Gullbridge and the date of the agreement. There is no doubt that the parties treated these expenditures as having been made under the Gullbridge agreement and they were applied on the purchase of shares. Falconbridge was not making a gift of these expenditures. The Gullbridge agreement was contemplated and spelled out in the prior Gull Lake agreement which had as a schedule the proposed agreement with the new company. The new company issued shares for these expenditures when the option was exercised. What more is needed. It was not necessary to wait until the agreement was formally executed.

IT am therefore of the opinion that there was twofold error in allowing Faleonbridge to deduct items I and IT.

As to items III and IV, in my opinion there was error in holding that these expenditures were reimbursed when Falconbridge applied them on the purchase of shares instead of paying cash, and that Falconbridge consequently did not incur these expenditures within the meaning of Section 53(4). If A spends money on the strength of a promise of B to reimburse him, he expects to receive money in return. Where B only promises an option on its share capital if A chooses to apply the expenditure in this way, then there is no reimbursement and I say notwithstanding the use of the word in paragraph 4 of the Gull- bridge agreement. If the expenditure is not applied on the purchase of shares, Gullbridge is under no obligation. I can get no help either way from Okalta Oils Limited v. M.N.R., [1955] Ex. C.R. 66; [1955] C.T.C. 39; and Corporation of Birmingham v. Barnes, 19 T.C. 195. In the Okalta case a Crown corporation had advanced the money for exploration. The company was under no obligation to repay except out of production from the well. The well was unproductive. The oil company tried to include this subsidy in its drilling costs for the purpose of claiming a tax credit, which at that time was 26% per cent of its costs. The Exchequer Court held that the oil company had not incurred those costs. In this Court, [1955] S.C.R. 824; [1955] C.T.C. 271, the point was not considered. On the other hand, in the Birmingham case, the corporation received a subsidy from the government to cover part of the cost of the reconstruction of certain tramlines. This came from the Unemployment Grants Committee. It also received a contribution towards the cost of a new line from a company that the new line was intended to serve. The question in issue was whether the corporation was entitled to include these two contributions in its cost when claiming a capital cost allowance in making its income tax return. The House of Lords held that it was. Neither case touches the present problem.

Another ground given in the Exchequer Court for the disallowance of items IIT and IV was that Falconbridge had not incurred these expenditures on its own account. The reasoning is given in the extracts above quoted. Falconbridge did not incur these expenditures as agent or contractor for somebody else and the right to apply the expenditure on shares, which, I have said, was erroneously called reimbursement, cannot turn the operation into one carried on on behalf of somebody else.

In conclusion then I say that all these four items represent expenditures for exploration and were incurred by Falconbridge within the meaning of Section 53(4). I would disallow all four solely under the provisions of Section 83A(7) (c).

The next four items of expenditure relate to agreements made with Rambler Mines Limited and Rambridge Mines Limited. They are similar in set-up to those made with Gull Lake and Gullbridge. The Rambler agreement is dated October 21, 1950. It gives Falconbridge the right to make an examination for a period of 60 days on certain mining claims. Falconbridge was not legally bound to proceed with this examination. If Falconbridge wished to proceed with the agreement, the parties would cause a new company to be incorporated to which the mining claims would be transferred. In consideration of the transfer, the new company would issue and allot all its shares, 40 per cent to Rambler and 60 per cent to Faleonbridge. Then Rambler and Falconbridge would cause the new company to enter into an agreement providing for the deposit in escrow of the issued shares to be released on defined conditions. Falconbridge did notify Rambler of its intention to proceed. The new company, Rambridge Mines Limited, was incorporated on January 10, 1951. On February 16, 1951, the parties entered into the Rambridge agreement, the form of which had already been settled as a schedule to the Rambler agreement, and under this agreement Falconbridge agreed to extend or advance to Rambridge the sum of $100,000 at certain intervals within twenty-four months subject to the right of Falconbridge to discontinue at any time on giving Rambridge 30 days’ notice. Any monies expended in excess of $100,000 would be treated as a loan by Faleonbridge to Rambridge and would be repayable before any dividends could be declared.

There are four items of expenditure relating to these agreements :

RAMBRIDGE

The learned trial judge in his reasons for Judgment in dealing with items V and VI adopted the same reasoning as he did in dealing with items I and II. In this I think that there was the twofold error I have already noted. However, item V must be dealt with on different grounds. The Minister, in his exchange of documents when the taxpayer filed an appeal, agreed with the taxpayer’s contention on item V and agreed to vary his assessment accordingly. The same applies to part of item VI. That part amounts to $4,212.36, leaving the balance of item VI $10,911.21. These items, because of the Minister’s notification, were not included in the company’s Notices of Appeal to the Exchequer Court. I think that once he had agreed with the taxpayer’s submission and agreed to vary the assessment, the assess- ment must be taken as varied. Consequently, these two amounts were not in issue in the Exchequer Court and nothing more needs to be said about them.

With regard to the balance of item VI, the whole of item VIT, and the whole of item VIII, the same result must follow as under the Gull Lake-Gullbridge agreements. The learned trial judge was of the opinion that these expenditures were made pursuant to an agreement but not the kind of agreement dealt with in Section 83A(7). He thought that the consideration was ‘‘shares of the capital stock of a corporation that was to be formed for the purpose of acquiring or controlling the mineral rights’’ [Section 83A(7)(c)] and that this was not a right to purchase such shares within the subsection. I cannot understand this distinction. The right to purchase shares of the capital stock of a corporation to be formed to hold the claims includes the actual issue of the shares and their delivery in escrow just as it does an option to purchase. If Falconbridge carried out the terms of the agreement and expended the $100,000 within the times specified, then it would be entitled to purchase the shares and have them delivered free of the escrow.

The next two items, items IX and X, arose from an agreement dated June 15, 1952, between Falconbridge and Jawtam Key Gold Zones (Rambler) Limited. There were minor differences in detail which do not affect the principles to be applied. The claims were transferred to a trustee pending transfer to a new company. There was the usual six months for the preliminary examination and then another 30 months during which time Falconbridge was required to expend $50,000. If it gave notice requiring the incorporation of the new company and had not spent the $50,000, the difference had to be paid to Jawtam. On the incorporation of the new company the claims had to be delivered by the trustee to it, whereupon it was to issue its shares—one-fifth to Jawtam and four-fifths to Falconbridge. Falconbridge never gave notice to require the incorporation of the new company and eventually abandoned its option on March 4, 1955. Particulars of the items are as follows:

JAWTAM

As to both items, the learned trial judge held, as he had done with reference to items I and II, that Faleonbridge had not undertaken these expenditures in the sense of entering into a legally enforceable agreement and that they were not made pursuant to any agreement. He consequently allowed the deductions. I have already expressed my disagreement with these propositions. However, item IX must be dealt with in the same way as item V and part of item VI. The Minister accepted the taxpayer’s submission on item IX and agreed to vary the assessment. I would therefore allow the deduction on this ground alone. As to item X, where there was no admission and agreement to vary the assessment, Section 83A(7)(c) applies and the deduction is disallowed.

STANMORE Item XI. $15,063.71

This agreement is dated April 27, 1951, between Falconbridge, Stanmore Mining & Smelting Limited and a number of other companies and individuals. The purpose was to get certain mining claims consolidated and transferred to a new company. Falconbridge advanced to Stanmore $5,000 for this purpose and had the right to purchase free treasury shares of the new company at 10 cents per share with this sum. The agreement went on to provide that Falconbridge would act as manager for a minimum period of three years; that it would receive shares at 10 cents per share for the first $10,000 expended on development and shares at the rate of 25 cents per share for the next $40,000 of expenditure. Falconbridge bound itself to expend up to this sum of $50,000. In 1951 and 1952 Falconbridge spent a total of $65,063.71 in exploring and developing the claims. It is common ground between the parties that Section 83A(7) prevents any deduction for the first $50,000. However, Falconbridge sought, in computing its income for 1952, to deduct the balance of $15,063.71. The learned trial Judge disallowed this deduction on the ground above stated, that these expenditures were made not on its own behalf and were therefore not expenses incurred by it within the meaning of Section 53(4). I disagree with this reasoning but I think the case is within Section 83A(7)(c) and the deduction is accordingly disallowed.

BRODIE Item XII. $3,603.14

This agreement is dated July 29, 1952 and was made with two individuals. It granted an option to purchase certain mining claims. Faleonbridge had the usual 60 days to make an examination during which period it was to give the optionors notice that it wished to proceed. The agreement also provided that Falconbridge could have a new company incorporated to acquire and hold the claims and Falconbridge would be entitled to receive shares for its development expenses in this new company. In 1952 Faleonbridge spent the above mentioned sum of $3,603.14 in conducting its examination. It did not proceed with the incorporation of the new company and it elected to abandon the option. The learned trial judge held, as he did with item I, that there was no “legally enforceable agreement’’ within Section 83A(7). On the contrary, I think that the item is within Section 83A(7)(c) and that the deduction must be disallowed.

The result is that all the items are disallowed as coming within Section 83A(7) (c) with the exceptions item V, item VI to the extent of $4,212.36, and item IX as to which there were admissions.

Falconbridge appealed the disallowance of items III, IV and XI. The Minister appealed or moved to vary on all the other items. The company’s appeal fails and is dismissed with costs. The Minister’s appeal succeeds on everything except item V, part of item VI and item IX. All the assessments made by the Minister stand with this exception. There should be no costs of the Minister’s appeal. The issues discussed were the same as those involved in the appeal with the exception of quantum, date and detail.