Taylor,
TCJ:—This
is
an
appeal
heard
in
Vancouver,
British
Columbia
on
May
28,
1984
against
an
income
tax
assessment
for
the
year
1978,
in
which
the
Minister
of
National
Revenue
increased
the
reported
income
of
the
taxpayer
by
an
amount
of
$23,722.26
to
take
into
account
the
taxable
capital
gain
on
the
sale
of
a
10-acre
parcel
of
property.
It
was
the
position
of
the
Minister
that:
—
the
Appellant
has
not
established
that
land
in
excess
of
one
acre
was
necessary
for
his
use
and
enjoyment
(of
the
housing
unit)
—
The
agreement
between
counsel
and
the
testimony
provided
indicated
that
the
zoning
regulations
in
effect
required
that
the
housing
lots
be
a
minimum
of
five
acres,
and
that
it
was
probable
the
land
could
have
been
divided
into
two
parcels,
and
with
concurrence,
on
a
subdivision
plan,
perhaps
into
even
smaller
parcels.
However,
during
the
eight
years
or
so
that
Mr
Rudeloff
had
lived
there
and
raised
his
family
he
had
made
no
effort
to
divide
or
subdivide
the
said
property.
In
effect,
therefore,
at
the
time
of
sale,
the
parcel
of
property
was
virtually
unchanged
from
the
time
of
purchase,
other
than
for
the
residential
improvements
he
had
put
there.
There
was
a
small
wood-lot
he
had
used,
he
kept
a
garden,
and
some
chickens
and
other
farm
animals.
His
notice
of
appeal
sums
it
up
—
—
the
land
was
for
the
use
of
raising
my
five
children
and
for
the
enjoyment
of
the
family,
riding
horses
etc,
I
am
satisfied
that
the
entire
10-acre
parcel
of
land
“contributed
to
the
individual’s
use
and
enjoyment
of
the
housing
unit
as
a
residence
—”
(paragraph
54(g)
of
the
Act
SC
1970-71-72,
c
63
as
amended),
but
it
must
be
established
that
the
excess
portion
at
issue
was
“necessary
to
such
use
and
enjoyment”.
I
would
refer
to
three
cases
dealing
with
the
subject:
Donald
Fraser
v
MNR,
[1983]
CTC
2522;
83
DTC
448;
The
Queen
v
William
Yates,
[1983]
CTC
105;
83
DTC
5158;
Elmo
B
Baird
v
MNR,
[1983]
CTC
2651;
83
DTC
582.
In
both
Yates,
(supra),
and
Baird,
(supra),
there
were
severances
of
the
main
parcel
of
land,
leaving
(according
to
the
arguments
of
the
appellants)
a
portion
of
the
original
“principal
residence”
sold,
and
a
portion
of
it
retained,
somehow
still
called
a
“principal
residence”.
Because
of
the
above-noted
distinction,
I
do
not
believe
that
either
Yates,
(supra),
or
Baird
(supra),
can
serve
as
complete
guidelines
in
this
instant
appeal.
Mr
Rudeloff
did
not
divide
his
property
at
the
critical
date,
in
the
same
way.
Therefore
to
whatever
degree
there
can
be
any
comparison
made,
it
must
be
made
to
Fraser,
(supra),
and
the
critical
phrases
therein
at
2527
[452]
and
2528
[453]:
Also,
I
would
emphasize
that
the
Act
is
perfectly
clear
—
the
principal
residence
is
the
housing
unit
—
and
only
the
housing
unit
—
anything
beyond
that
is
apparently
a
concession
to
practicality
and
reasonableness.
Certainly
the
family
could
reside
in
the
house
without
even
setting
foot
on
the
garden
and
play
area.
.
.
.
it
is
important
to
perceive
of
the
excess
area
in
dispute
as
indispensable
in
its
direct
relationship
to
the
residential
properties
of
the
housing
unit,
not
merely
in
its
utility
and
value
to
the
inhabitants
thereof.
I
am
not
persuaded
the
relevant
section
of
the
Income
Tax
Act
permits
of
the
view
espoused
by
this
taxpayer
—
that
merely
because
he
resided
in
a
housing
unit
on
the
property,
and
used
the
balance
of
the
property
in
one
way
or
another
to
enhance
the
utility
and
attractiveness
of
that
domestic
living
style,
he
can
expand
the
boundaries
of
his
housing
unit
to
the
parameters
of
the
natural
domain
desired
in
his
appeal.
The
appeal
is
dismissed.
Appeal
dismissed.
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