Norma Shaw, Jack a Shaw v. Minister of National Revenue, [1985] 1 CTC 2232, 85 DTC 154

Rip, TCJ:—These appeals of Jack A Shaw and his wife, Norma Shaw, from notices of reassessment for the 1979, 1980 and 1981 taxation years. The issue under appeal is whether in 1975 the appellants transferred to Jack Shaw Enterprises Ltd (“Enterprises”) the right to receive certain future payments from BP Oil Ltd (“BP”) and whether the payments, when made by BP in the years under appeal, are to be included in the income of the appellants or Enterprises. Enterprises is a corporation the shares of which are owned as to 51 per cent by Mr Shaw and 49 per cent by Mrs Shaw.

The appeals were heard on common evidence.

At all relevant times the appellants lived in Fort Erie, Ontario. In 1969 the appellants formed a partnership (“partnership”) to purchase land and operate thereon an automobile service station selling gasoline and related products and providing various automobile services under the firm name Green Acres Service. The property acquired by the partners is located at 1326 Garrison Road in Fort Erie, approximately one-half mile from the Canada-USA border near Buffalo, New York. Legal title to the property was registered in the name of Mrs Shaw. From 1969 to May 31, 1975 the partners carried on the service station business on Garrison Road pursuant to a dealership and other agreements, including leases, with BP and a predecessor in title, Supertest Canada Ltd (“Supertest”).* [1]

On June 1, 1976 the appellants, as lessors and sublessees, entered into a head lease and sublease respectively with BP for the Garrison Road property. The head lease was similar to that previously entered into by the appellants and Supertest and provided for a fixed minimum rent plus an additional rent calculated on the basis of the volume in gallons of gasoline sold from the property (“gallonage”). Then BP, as sublessor, leased the property back to the appellants as partners, as sublessees, for a rent equal to the minimum rent fixed by the head lease in the same manner as did Supertest some years earlier.f [2] The rental clause in the head lease reads as follows:

3. YIELDING AND PAYING THEREFOR unto the Lessor yearly and every year during the said term hereby granted a Minimum Annual Rental of $6,000.00 due and payable in equal monthly installments in advance commencing on the first day of the term and continuing thereafter on the same day of each successive month during the said term plus an Additional Annual Rental calculated in accordance with the number of gallons of gasoline purchased from the Lessee and sold from the demised premises in any lease year as set out in the following table payable annually in arrears.

Number of Gallons of Gasoline

purchased from the Lessee and

sold from the Demised Premises

in any lease year.	Additional Annual Rental
0 — 350,000	NIL
350,001 — 600,000	3.75 cents on all gallons
600,001 — 1,200,000	4.00 cents on all gallons

In any lease year that purchases from the lessee exceed 600,000 gallons, the lessee shall pay an additional rental of $1,200.00 to the lessor. The addition annual rental is to be paid monthly to the lessor at the rate of 3.75 cents per gallon, provided a minimum of 30,000 gallons are purchased during that month. Any additional rental owing will be paid, in arrears, at the end of each lease year.

Provided that in no case shall the Additional Annual Rental exceed $49,200.00 and in no case shall the foregoing Additional Annual Rental table be deemed to be cumulative.

IT IS EXPRESSLY UNDERSTOOD AND AGREED by and between the parties hereto that

(a) the rental payments due and owing by the Lessor to the Lessee pursuant to the terms of the Sublease being entered into concurrently herewith and any renewals thereof and/or all or any amounts owing from time to time to the Lessee by the Lessor or the Sublessee under said Sublease or any other person or corporation directly or indirectly permitted by said Sublessee to be in possession or occupation or to carry on business on all or part of the demised premises, in respect of the Sales and Equipment Loan Agreement being entered into concurrently herewith or any successor agreement between the parties to the same or like effect and/or any outstanding merchandise and/or mortgage account the Lessor may have with the Lessee, may, at the option of the Lessee, be set off from time to time in whole or in part against the rent payable under this lease.

(b) the term “lease year’’ wherever used in this lease shall be deemed conclusively to mean and refer to those successive and consecutive twelve month periods commencing upon and inclusive of the day of commencement of the term and each 12 month anniversary date thereof.

(c) the Lessee shall have up to thirty (30) days from the date any payment thereunder is first due and payable to make such payment if necessary.

By agreement made as of June 1, 1975 the appellants sold assets owned by them as partners to Jack Shaw and Norma Shaw, in trust for Jack Shaw Enterprises Ltd, a company to be incorporated, in consideration of a non-interestbearing promissory note in the amount of $22,530.39 and one hundred common shares in the capital stock of Enterprises, making the election pursuant to subsection 85(2) of the Income Tax Act. The agreement of purchase and sale reads as follows:

THIS INDENTURE made as of the 1st day of June, 1975.

BETWEEN:

JACK SHAW and NORMA SHAW, carrying on business as Green Acres Service

(hereinafter called the “Vendor’’)

OF THE FIRST PART

— and —

JACK SHAW and NORMA SHAW, in trust for JACK SHAW ENTERPRISES LIMITED, a company to be incorporated,

(hereinafter called the “Purchaser”)

OF THE SECOND PART

WHEREAS the Vendor has agreed to sell and the Purchaser has agreed to purchase certain of the assets of the Vendor;

AND WHEREAS the Purchaser has agreed to assume the liabilities of the Vendor, all upon the terms and conditions hereinafter set forth.

NOW THEREFORE in consideration of the premises and the terms and conditions herein contained other good and valuable consideration it is hereby agreed;

1. The Vendor hereby sells to the Purchaser and the Purchaser hereby purchases from the Vendor as of the 1st day of June, 1975, all the personal property and assets, movable and immovable and including but without limiting the generality of the foregoing all incomes, monies, rights, leases, franchises, materials, supplies, book debts, accounts receivable, negotiable and non-negotiable instruments, judgments, securities, choses in action, existing and future revenue and all other property and things of value, tangible and intangible, legal or equitable as of the 1st day of June, 1975. For the purpose of this agreement the fixed assets are to be valued at the unclaimed capital cost for tax purposes and all other assets are to be valued at their respective book values as of the date of this agreement. Goodwill is to be valued at $2.00.

2. The Purchaser covenants and agrees to assume and be liable for all the liabilities of the Vendor at their respective book values save and except any liability for income tax.

3. The assets transferred and conveyed by the Purchaser are valued for the purposes of this Agreement at $46,296.21. The liabilities assumed by the Purchaser for the purposes of this agreement are valued at $22,665.82. The Purchaser shall give to the Vendor a promissory note without interest payable on demand for the balance of the purchase price in the amount of $22,530.39. In addition to the aforesaid promissory note, the Purchaser shall to issue the Vendor 100 common shares in the capital stock of the Purchaser.

4. The Vendor and the Purchaser agree each with the other to elect to have the provisions of Section 85(2) of the Income Tax Act of Canada apply to this transaction.

IN WITNESS WHEREOF the parties hereto have hereunto affixed their hands and seal as of the day of year first above written.

GREEN ACRES SERVICE

Per:	“J.A. Shaw”
Per:	‘‘Norma G. Shaw”

JACK SHAW ENTERPRISES LIMITED

Per:	“J.A. Shaw”
Per:	‘‘Norma G. Shaw”

On June 26, 1975 the following resolutions were consented to by the signatures of all the directors of Enterprises:

(a) The Company do assume the benefits and obligations of an agreement between Jack Shaw and Norma Shaw as Vendor and Jack Shaw and Norma Shaw in trust for the Company as Purchaser to acquire the operating assets of the business known as Green Acres Service, which agreement bears date June 1, 1975;

(b) The Company do execute and deliver under its corporate seal a demand noninterest bearing promissory note in favour of Jack Shaw and Norma Shaw in the amount of $22,530.39 and the President and Secretary be and they are hereby authorized and directed to execute the said note and to affix the corporate seal thereto;

(c) The Company do allot and issue to Jack Shaw and Norma Shaw as fully paid and non-assessable 100 common shares in the capital stock of the Company;

(d) The President of the Company be and he is hereby authorized to take such steps and sign such documents as are necessary to make the election with respect to the agreement dated June 1, 1975 between Jack Shaw and Norma Shaw and the Company pursuant to the provisions of Section 85 of The Income Tax Act of Canada;

(e) The Company do lease from Jack Shaw and Norma Shaw the lands and buildings on which the Green Acres Service business is operated at a rental of $1,000 per month on a net/net basis; and

(f) The Company do assume all benefits and obligations arising out of an agreement between Norma Shaw and Jack Shaw as Lessee and dealer and Supertest Petroleum Corporation, (‘‘BP”) Limited with respect to the operation of the said business.

The year-end of both the partnership and Enterprises is May 30th.

It may be noted the form of election to be filed pursuant to subsection 85(2), which would normally list the assets being transferred, was not filed as an Exhibit.

The solicitor who prepared the documentation for the transfer of the assets from the appellants to Enterprises testified that he was not familiar with the appellants’ business and received instructions to transfer the business assets from the appellants’ accountant.

Mr Cairns, the appellants’ erstwhile solicitor, who has since left private practice, testified that prior to trial he reviewed notes he prepared at the time of the transfer of the assets. He stated that at the time he was provided with the lease and the sublease he familiarized himself with them, including the gallonage provisions. He said that during the course of meetings he had with the accountant for the appellants and with the appellants a decision was taken not to transfer the realty to Enterprises but that Enterprises would pay a rent to the partnership; however “all other payments would go to the corporation”, ie Enterprises; this, he said, included gallonage payments under the head lease. In cross- examination however, he replied that his notes lacked any specific reference to “gallonage payments” as such.

Mr Shaw testified that it was the intention of all concerned — he, Mrs Shaw, their accountant and their solicitor — that the “leases would stay as they were” and Enterprises “would have the benefits and obligations” of the business, the main benefit being the right to the gallonage payments and BP credit cards and the principal obligation being the handling of BP’s product line on an exclusive basis.

Prior to June 1, 1975 BP made all payments in respect of gallonage by cheque payable to Mrs Shaw who would immediately deposit the cheque in the partnership bank account. The gallonage payments were included in the partnership’s income for the year. Once the business was transferred to Enterprises Mrs Shaw continued to receive the gallonage cheques from BP payable to her but she would immediately endorse the cheques and deposit same to Enterprises’ bank account. Enterprises reported the gallonage payments in its income for the year. From June 1st, 1975 Enterprises carried on the business from the Garrison Road property paying a monthly rent of $1,000 to the Shaws for the use of the property in the first year after the sale.

I conclude there was a verbal lease between the appellants and Enterprises for the use of the Garrison Road property by Enterprises for the period commencing January 1, 1975.

As stated, the service station was located close to the border with the USA. During the years under appeal gasoline prices in Canada were substantially lower than those in the USA; the evidence was that at the same time the USA dollar had a greater value than the Canadian dollar. This combination operated very favourably to attract a vast number of American residents to cross the border to purchase gasoline at border point gasoline stations in Canada rather than in the USA. The business of Enterprises “boomed” and expanded from two to eight service bays.

Mr E Seidel, the accountant for Enterprises, testified on behalf of the appellants. Mr Seidel is a franchisee of E K Williams Ltd, a franchisor of the business of advising people in the petroleum industry on business and finance. He has 23 years’ experience in this field and he has been associated with Enterprises since 1978. He was responsible for preparing the accounting records of Enterprises during the years under appeal. In Mr Seidel’s view gallonage payments are made by an oil company such as BP to a dealer as an incentive to sell more product. Gallonage payments are rebates of purchase price of gasoline sold and are directed to the volume of business; there may be a base amount of product that a dealer may sell and as more volume of the product is sold, the volume rebate is increased. Mr Seidel stated “volume is gasoline, nothing else”. Gallonage is a payment of a certain number of cents per litre of gasoline delivered to the premises. Usually the dealer pays the oil company on delivery of the gasoline to the premises; if the dealer had sold above his quota, the rebate is paid by the oil company at the end of the following month and adjustments are made at the end of the year according to the contract. The method of calculating the rebate varies amongst the oil companies but according to Mr Seidel, in general, once a dealer sells above a certain volume he begins to get a rebate; the rebates may start in the middle of the year or earlier or later, depending on the current year’s volume.

Mr Seidel treated the rebate for accounting purposes as income to Enterprises, notwithstanding the cheques from BP were payable to Mrs Shaw. In his view the rebates were income to Enterprises since they related to the business and product sold by Enterprises. The rental income to the Shaws was only the rents paid by Enterprises to the Shaws.

The following amounts were paid by BP on account of gallonage and by En- terprises on account of rent to the Shaws:

Since 1982, because of increases in Canadian gas prices at the pump, which are now higher than those in northern New York state, the volume of Enterprises dropped and business declined. As a result gallonage payments fell to 1979 levels. However Enterprises continued to pay the appellants rents in excess of those paid in the earlier years. In each of 1982, 1983 and 1984 the annual rent paid to the appellants by Enterprises was $60,000.

The appellants’ position in this appeal is that in 1975 Mr and Mrs Shaw transferred beneficial title to future gallonage payments to Enterprises and subsection 56(4) of the Income Tax Act does not operate so as to include the gallonage payments to be added to the incomes of Mr and Mrs Shaw. Counsel for the appellants argues that notwithstanding that the agreement of purchase and sale does not specifically refer to the gallonage payments being transferred, the conduct of the parties was such that there was no doubt that this was their intention and this is what they in fact did. Counsel also takes the position that notwithstanding that the agreements entered into in 1976 were not in existence in 1975, when the transfers took place, the conduct of the parties again makes it clear that the intent of the parties was that all gallonage payments were to belong and be to the benefit of the corporate entity, Enterprises, forever after June 1, 1975.

The respondent’s position is simple: the head lease rental clause determines rent, the gallonage is a rent calculation; therefore any gallonage received is that of the lessors, Mr and Mrs Shaw. In any event, the property from which the gallonage payments are derived was not transferred from the appellants to Enterprises; accordingly, if there was a transfer of the right to receive the gallonage payments then, pursuant to subsection 56(4), the amounts received from BP are to be included in incomes of the appellants.

Counsel for the appellants also argues that in fact the gallonage payments are, as stated by Mr Seidel, volume discounts to dealers but that section 31.4 of the Combines Investigation Act 1974-75-76, SC c 76, s 12 prohibits a supplier, such as an oil company, from inducing a customer, such as a retailer of gasoline, to purchase product exclusively from the supplier by offering preferred prices to him, in this case a rebate on volume of gasoline sold.f [4] But, added appellants’ counsel, the Combines Investigation Act does not preclude the oil company and the retailer from agreeing on preferred prices on more favourable terms and conditions by adjustment to rent on property leased by the retailer to the oil company. This adjustment would in fact take into account the gallonage or rebate on volume sales. This, he says, is what transpired between the appellants and BP.

Counsel for the appellants stated he has no doubt that had the real estate been transferred to Enterprises and then Enterprises had entered into lease and sublease agreements with BP the income from the rebates would unquestionably be treated by the respondent as income to Enterprises; he also agreed that if the appellants had leased the real estate to Enterprises who would have then subleased the property to BP who would then turn around and sub-sublease the property back to Enterprises the respondent would not have reassessed the appellants.

There was no evidence from any official of BP.

Notwithstanding what could have been done, the issue is what in fact were the gallonage payments and was the right to receive them transferred in 1975. And if the right to receive such payments were transferred in 1975 does subsection 56(4) of the Income Tax Act apply?

It is clear to me, and I so find, that the gallonage payments were on account of rent paid for the Garrison Road property by BP to Mrs Shaw, the partners. The head lease between Mrs Shaw and BP called for a rental calculation based

him on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those paragraphs;

“market restriction’’ means any practice whereby a supplier of a product, as a condition of supplying the product to a customer, requires that customer to supply any product only in a defined market, or exacts a penalty of any kind from the customer if he supplies any product outside a defined market;

“tied selling’’ means

(a) any practice whereby a supplier of a product, as a condition of supplying the

product (the “tying’’ product) to a customer, requires that customer to

(i) acquire some other product from the supplier or his nominee, or

(ii) refrain from using or distributing, in conjunction with the tying product, another product that is not of a brand or manufacture designated by the supplier or his nominee, and

(b) any practice whereby a supplier of a product induces a customer to meet a condition set out in subparagraph (a)(i) or (ii) by offering to supply the tying product to him on more favourable terms or conditions if the customer agrees to meet the condition set out in either of those subparagraphs.

(2) Where, on application by the Director, and after affording every supplier against whom an order is sought a reasonable opportunity to be heard, the Commission finds that exclusive dealing or tied selling, because it is engaged in by a major supplier of a product in a market or because it is widespread in a market, is likely to

(a) impede entry into or expansion of a firm in the market,

(b) impede introduction of a product into or expansion of sales of a product in the market, or

(c) have any other exclusionary effect in the market,

with the result that competition is or is likely to be lessened substantially, the Commission may make an order directed to all or any of such suppliers prohibiting them from continuing to engage in such exclusive dealing or tied selling and containing any other requirement that, in its opinion, is necessary to overcome the effects thereof in the market or to restore or stimulate competition in the market.

on a specific formula and the payments she received were based on that formula. The volume of product sold was due more to the location of the business near the Canada-USA border, and the price advantage to residents of the United States, than to anything done by Enterprises; in fact there was no evidence increased sales were due to any special efforts of Enterprises, except for the increase in service bays. As soon as Canadian gasoline prices increased above US levels, the business volume dropped. BP was making gallonage payments for location of the property it leased.

In my view what was transferred pursuant to the agreement of June 1, 1975 was the business carried on by the appellants, including all assets used by the business, except the realty. The ownership of the real property on Garrison Road remained with the appellants, as they intended; if any lease was assigned to Enterprises under the agreement — and I am not sure any lease was — it would have been the sublease from BP to Mrs Shaw; at no time did the appellants as head lessors assign the head lease to Enterprises.

The appellants say that the agreement of purchase of sale provided for the transfer of all personal property and assets, including “all incomes . . . rights, leases, . . . choses in action, existing and future revenue and all other property and things of value, tangible and intangible, legal or equitable . . .”. The beneficial title to the rent receivable under a lease is a chose in action which can be assigned absolutely. F W Rhodes writes in Canadian Law of Landlord and Tenant (4th Ed 1973), at page 224, that “. . . as a chose in action rent may be assigned and recovered by the assignee, suing in his own name”, referring to the Ontario Conveyancing and Law of Property Act, RSO 1980, c 90, s 53(1). So long as the intention of the assignor and assignee is clear no special form or wording is necessary in order validly to assign the benefit of a chose in action vide: Cheshire, Fifoot and Furmston, The Law of Contract (8th Ed 1972) at pages 490-491. However the assignee of rents has no right to recover the real property should the tenant default, his only remedy would be to sue the tenant in the ordinary way for rent due and unpaid and to execute after obtaining judgment. (vide Canada Trustco Mortgage Company v Skoretz, [1983] 4 WWR 618 at 630, per Miller, J.)

I have some reservation whether the rents for the Garrison Road property under the Supertest lease were transferred by the agreement of June 1, 1975, let alone the rents under the BP lease. The appellants’ counsel suggested that if there is any uncertainty about a term of a contract, ie, if rents were assigned, it is proper to consider the parties’ conduct since making the contract as a guide to interpretation. Mrs Shaw, from June 1, 1975 onwards, consistently deposited to Enterprises’ bank account all gallonage payments she received from BP; this, says counsel, shows a course of conduct over several years that the appellants had intended to assign and did assign the gallonage payments to Enterprises (see Massey-Ferguson Limited v The Queen, [1977] CTC 6 at 13; 77 DTC 5013 at 5016-17 and The Queen v Gerald J Burns, [1973] CTC 264 at 265; 73 DTC 5219 at 5220). In the former case, Urie, J stated that:

The whole development of commercial law over the centuries is replete with examples of the Courts recognizing that business men do not always depend on expert documentation to prove the true characterization of their transactions. Rather, they tend to achieve their desired ends, particularly when the relationships between them are close, in informal and expeditious ways which perhaps are abhorrent to lawyers. In doing so they ran (run) the risks inherent in such a practice of determining their respective rights. Frequently no difficulties ensue, but if they do, in the absence of contracts or other documents, Courts must determine the intention of the parties and the nature of the obligations imposed on them by reference to credible evidence of another kind.

The inference I am asked to draw from the evidence of Mr and Mrs Shaw and Mr Cairns is that Mrs Shaw’s conduct confirmed the appellants’ intention to transfer the gallonage payments to Enterprises, and the endorsement of cheques by Mrs Shaw in favour of Enterprises to its bank account was as a result of the assignment. Even if I accept this argument there still remains the question of the ownership of the Garrison Road property which remained with the appellants:

Subection 56(4) reads as follows:

56(4) Where a taxpayer has, at any time before the end of a taxation year (whether before or after the end of 1971), transferred or assigned to a person with whom he was not dealing at arm’s length the right to an amount that would, if the right thereto had not been so transferred or assigned, be included in computing his income for the taxation year because the amount would have been received or receivable by him in or in respect of the year, the amount shall be included in computing the taxpayer’s income for the taxation year unless the income is from property and the taxpayer has also transferred or assigned the property.

It is clear that the ownership of the Garrison Road property was not transferred. However the appellants’ counsel argues that since a lease is property (section 248) the gallonage payments were income from the head lease which was assigned. Thus subsection 56(4) cannot be invoked by the respondent. In my view even if the head lease was assigned, it would be the underlying realty and not the lease which yielded the income. Without the real estate the lease would not exist. One must look at the source of the income to determine the property which yields the income. Here the income is derived from the realty; the lease is created to enable the owner of the property and the tenant, inter alia, to agree as to payment for use of the property over a term of years.

Counsel for the appellants also asks the Court to distinguish between the right to existing income and the right to future income. Counsel for the appellants says that subsection 56(4) applies only to the transfer of the right to an existing amount of income. In other words, once a taxpayer has the right to an existing amount of income he cannot avoid tax thereon by transferring the right to that amount to someone else. Counsel adds subsection 56(4) does not apply to prohibit “a professional taxpayer”* [5] to transfer “to a related taxpayer the right to all future fees arising from his professional services”: vide The Queen v Dr H H Campbell, [1980] CTC 319; 80 DTC 6239 (SCC) and R J Sazio v MNR, [1969] CTC 579; 69 DTC 5001 (Ex Ct); nor does the subsection apply to a non-arm’s length transfer of the right or opportunity to earn or produce income in the future: vide Stubart Investments Limited v The Queen, [1984] CTC 294; 84 DTC 6305 (SCC).

Subsection 56(4) does not apply when a business asset is transferred from one taxpayer to another in a bona fide transaction. The right or opportunity to earn or produce income in the future is transferred in such a case because the ownership of the asset used to earn or produce the income is transferred; if the asset is not transferred, subsection 56(4) would apply. Neither Campbell nor Sazio is authority for the proposition that subsection 56(4) does not apply to the transfer of the right to future income. In Campbell the taxpayer was an employee and shareholder of a corporation incorporated to operate a private hospital. Dr Campbell received a salary from the corporation and in return he paid to the corporation all fees for medical services which he received from the provincial health plan; these amounts were transferred to the corporation by Dr Campbell qua employee. Nothing in Campbell turned on the fact that billings for insured medical services were in the names of the doctors performing them when this was done to comply with government regulation. In Sazio, the corporation incorporated by the taxpayer, a football coach, was fully competent to engage in football coaching and other activities and the agreements entered into between the taxpayer and the corporation were bona fide commercial transactions. Neither Dr Campbell nor Mr Sazio was providing professional services except as an employee of their respective corporations. There was no transfer of fees — future or otherwise — in either case.

In the Stubart Investments Limited case there was a bona fide transfer of assets from a profitable business to another corporation with accumulated losses, notwithstanding that by agreement between the two corporations the vendor continued to carry on the business as an agent for the purchaser. The income earned by the other corporation was from assets it acquired from Stubart Investments Limited, notwithstanding that the latter corporation was carrying on the business on behalf of the other corporation as its agent.

Cattanach, J sets out some of the requirements of subsection 56(4) in Fraser Companies, Limited v The Queen, [1981] CTC 61; 81 DTC 5051:

First, subsection 56(4) relates to persons not dealing at arm’s length;

Secondly, subsection 56(4) relates to the transfer or assignment of a right to an amount. A loan, for example, is not a transfer or assignment of an amount; and

The amount to which the right is transferred or assigned under subsection 56(4) must have been taxable in the hands of the assignor.

I would add that the ownership of the property which yields the income must remain with the assignor.

Let us assume that in the case at bar there has been a “bona fide” assignment of a right to an amount of income between persons not at arm’s length. However the assignor retained ownership of the property. Thus, pursuant to subsection 56(4) rental income is taxable in the hands of the assignor. The appellants are brought precisely within the provisions of subsection 56(4).

I am not impressed with the appellants’ argument in respect of the Combines Investigation Act. If a transaction is struck so as to avoid the provisions of one statute I find it difficult to consider that for the provisions of another statute the transaction is something else. A leopard does not change its spots.

The appeals will be dismissed.

Appeals dismissed.