Bonner,
TCJ:—The
appellant
appeals
from
an
assessment
of
income
tax
for
the
1978
taxation
year.
On
assessment
the
Minister
included
in
the
computation
of
income
the
gain
realized
by
the
appellant
on
the
sale
of
a
4.5-acre
parcel
of
land
at
1235
Southdale
Road,
London,
Ontario.
It
was
the
appellant’s
contention
that
the
gain
was
on
capital
account
and
that
the
portion
of
the
gain
attributable
to
a
one-half
acre
part
of
the
4.5
acres
was
realized
on
the
sale
of
the
appellant’s
principal
residence
and
was
therefore
exempt.
The
4.5
acres
was
bought
by
the
appellant
in
1972.
The
land
was,
at
all
relevant
times,
vacant.
In
1974
the
appellant
bought
an
adjacent
one-half
acre
parcel
with
a
house
and
other
buildings
thereon.
The
total
parcel,
five
acres
in
area,
was
sold
by
the
appellant
in
1978.
The
appellant
testified
that
there
were
problems
with
ants
and
with
a
porch
as
a
result
of
which
he
sold
his
first
house
in
1971
or
1972.
That
first
house
had
been
bought
in
1969.
The
appellant’s
second
house
was
bought
in
1971
and
was
sold
in
1974
following,
he
said,
threats
of
expropriation.
The
appellant
then
moved
to
the
house
on
the
one-half
acre
parcel.
He
testified
that
he
always
wanted
a
larger
parcel
of
land
on
which
to
build
his
home.
He
therefore
asked
a
contractor
friend,
Mr
Ostojic,
about
building
a
house
on
the
4.5
acres.
Mr
Os-
tojic
told
him
that
building
would
be
too
expensive
because
at
the
time
sewers
were
about
one
thousand
feet
away.
Apart
from
this
one
casual
inquiry
the
appellant
did
nothing
during
his
six
years
of
ownership
of
the
4.5
acres
to
fulfil
his
alleged
desire
to
build
a
house.
The
circumstances
surrounding
the
sale
shed
no
light
on
the
appellant’s
reasons
for
buying
the
land.
The
appellant
was
married
in
1974.
He
appears
to
have
been
obsessed
by
a
belief
that
his
wife
wanted
to
get
her
hands
on
his
property.
He
testified
that
his
lawyer
advised
him
that
in
April
of
1978
his
wife
would
be
entitled
to
a
one-half
share
of
his
property.
I
assume
the
lawyer
had
the
Family
Law
Reform
Act
in
mind.
Although
reference
was
made
to
a
divorce
granted
late
in
1977
in
Yugoslavia
the
appellant
was,
I
also
assume,
advised
that
it
was
of
no
effect
in
Canada.
Based
on
the
advice
the
appellant
said
that
he
put
the
Southdale
lands
and
some
of
his
other
properties
up
for
sale.
It
would
seem
that
the
appellant
sold
only
the
properties
that
he
thought
his
wife
was
aware
of.
The
appellant
stated
that
during
the
period
while
he
lived
on
Southdale
Road
friends
sometimes
joined
him
on
Sunday
after
church
for
lawn
bowling.
This
evidence
was
confirmed
by
Mr
Ostojic.
However,
neither
said
whether
the
lawn
bowling
activities
utilized
any
part
of
the
4.5
acres.
Thus,
there
is
no
persuasive
evidence
of
any
appreciable
use
of
the
property
during
the
period
of
ownership.
The
appellant’s
evidence
could
generally
be
described
as
vague.
At
times
he
contradicted
himself.
It
was
shown
that
the
appellant
engaged
in
a
substantial
number
of
sales
and
purchases
of
real
estate
over
the
period
between
1969
and
1982.
Although
at
the
time
of
trial
he
held
somewhat
more
than
half
of
the
total
properties
purchased,
it
was
not
clear
that
all
or
even
most
of
the
appellant’s
real
estate
holdings
could
be
characterized
as
capital
assets.
None
of
the
rental
properties
appears
to
have
generated
profits
except
on
disposition.
The
evidence
did
not
plainly
show
that
the
appellant
was
a
speculator
in
real
estate.
Equally,
it
did
not
show
that
he
was
an
investor.
On
all
of
the
evidence
I
cannot
conclude
that
it
has
been
shown
that
the
gain
in
issue
was
not
as
found
on
assessment
income
from
a
business.
The
appeal
will
therefore
be
dismissed.
Appeal
dismissed.
Email this Content