Ryan,
J
(concurred
in
by
Kerr
and
Sheppard,
DJJ)
(judgment
delivered
from
the
Bench):—This
is
an
appeal
from
the
judgment
of
the
Trial
Division,
dated
April
22,
1976,
which
dismissed
the
appellant’s
appeal
from
a
judgment
of
the
Tax
Review
Board.
The
appeal
is
in
relation
to
a
series
of
assessments
for
income
tax
for
the
taxation
years
from
1969
to
1972
inclusive.
The
assessments
were
in
respect
of
interest
payments
made
by
persons
resident
in
Canada
to
the
appellant,
a
non-resident.
The
interest
was
paid
on
unpaid
balances
of
the
purchase
price
of
lots
of
land
sold-by
the
appellant.
The
lots
are
located
at
a
place
called
Sudden
Valley
in
the
State
of
Washington.
The
tax
in
respect
of
each
of
the
years
from
1969
to
1971
inclusive
was
assessed
by
virtue
of
Part
III
of
the
Income
Tax
Act
then
in
force;
that
in
respect
of
1972
under
Part
XIII
of
the
Act
then
and
now
in
force.
Because
of
section
805
of
the
Income
Tax
Regulations
the
appellant
would
not
be
taxable
under
Part
III
or
Part
XII
if
it
was
carrying
on
business
in
Canada
during
the
relevant
years
and
the
payments
were
reasonably
attributable
to
the
business.
The
critical
question
then
is:
Was
the
appellant
carrying
on
business
in
Canada
during
these
years?
The
facts
of
the
case
are
stated
in
the
reasons
for
judgment
of
the
learned
trial
judge.
It
is
clear
on
the
facts
that
the
appellant
was
not
carrying
on
business
in
Canada
unless
its
activities
fall
within
the
extended
definition
of
“carrying
on
business
in
Canada”
as
set
forth
in
paragraph
253(b)
of
the
Income
Tax
Act:
253.
Where,
in
a
taxation
year,
a
non-resident
person
(a)
.
.
.
(b)
solicited
orders
or
offered
anything
for
sale
in
Canada
through
an
agent
or
servant
whether
the
contract
or
transaction
was
to
be
completed
inside
or
outside
Canada
or
partly
in
and
partly
outside
Canada,
he
shall
be
deemed,
for
the
purposes
of
this
Act,
to
have
been
carrying
on
business
in
Canada
in
the
year.
This
paragraph
is
in
the
same
terms
as
paragraph
139(7)(b)
of
the
former
Act,
the
paragraph
applicable
to
the
taxation
years
from
1969
to
1971
inclusive.
The
learned
trial
judge
made
these
findings
[p
300]:
.
.
.
From
a
glance
at
the
evidence
in
this
case,
which
I
have
summarized
above,
it
is
abundantly
clear
that
no
offer
was
obtained
and
no
attempt
was
made
to
obtain
any
in
Canada
and
it
is
equally
clear
that
nothing
was
offered
for
sale
in
Canada
either
through
an
agent
or
otherwise.
One
must
therefore
conclude
that
the
real
estate
business
of
the
plaintiff
was
not
being
carried
on
in
Canada
even
within
the
extended
meaning
given
to
that
term
by
paragraph
253(b).
The
only
activity
carried
on
in
Canada
by
the
plaintiff
was
that
of
attempting
to
induce
Canadians
to
visit
Sudden
Valley
in
the
hope
that
some
might
eventually
become
interested
in
buying
property
there.
These
findings
are
supported
by
the
evidence
and
are
decisive
of
the
issue.
Indeed,
the
final
finding
would
itself
be
enough.
I
would
dismiss
the
appeal
with
costs.
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