The
Chairman:—This
is
the
appeal
of
the
Estate
of
Harold
G
Brooks
from
an
income
tax
assessment
in
respect
of
the
1972
taxation
year.
The
issue
to
be
determined
is
whether
or
not
an
election
made
by
the
agent
of
the
appellant
pursuant
to
section
4700
of
the
Income
Tax
Regulations
and
subsection
26(7)
of
the
Income
Tax
Application
Rules,
resulting
in
a
taxable
capital
gain
for
the
appellant
in
the
amount
of
$1,557.17
which
arose
from
the
sale
of
a
non-depreciable
property,
was
properly
assessed
by
the
respondent
in
the
year
pertinent
to
this
appeal.
In
the
appellant’s
1972
tax
returns,
Mr
S
C
Jones,
the
appellant’s
agent,
elected
the
fair
market
value
as
at
December
31,
1971
to
be
the
cost
of
shares
sold
in
1972.
Subsequently
the
agent
realized
that
he
had
had
an
option
by
which,
in
applying
the
median
rule,
the
capital
gain
realized
in
the
sale
of
the
said
shares
would
have
resulted
in
a
taxable
capital
gain
of
$348.67
instead
of
$1,557.17
and,
accordingly,
he
submitted
an
amended
income
tax
return
for
1972.
The
respondent
rejected
the
appellant’s
amended
return
and
it
is
from
this
decision
of
the
Minister
that
the
agent,
Mr
Jones,
is
appealing
on
behalf
of
the
appellant.
There
is
no
dispute
as
to
the
facts
and
the
appellant’s
agent
did
not
really
contest
the
legality
of
the
Minister’s
decision
but
sought
relief
on
compassionate
grounds.
lt
would
appear
that
Mr
Jones
had
been
led
to
believe
by
someone
at
the
Department
of
National
Revenue
that
relief
could
be
obtained
by
submitting
an
amended
return.
He
was
anxious
to
correct
an
oversight
made
by
him
as
the
executor
of
a
$40,000
estate,
the
principal
source
of
revenue
for
a
70-year-old
widow,
whose
affairs
he
had
been
administering
without
charge
for
25
years.
I
believe
that
it
is
not
sufficiently
stated
to
taxpayers
and
not
generally
known
by
them
that
opinions
and
advice
of
employees
of
the
Department
of
National
Revenue,
though
sincerely
made
in
good
faith,
can
be
incomplete
and
sometimes
erroneous
and
that
they
are
not
binding
on
the
Minister
of
National
Revenue.
The
only
basis
on
which
a
taxpayer
can
be
assessed
by
the
Minister
is
the
Income
Tax
Act
itself.
On
hearing
appeals
instituted
before
it
the
Tax
Review
Board
merely
ascertains
whether
or
not
the
taxpayer’s
assessment
was
made
properly
pursuant
to
the
provisions
of
the
Income
Tax
Act.
In
this
instance
there
is
no
question
that
the
taxpayer
was
properly
assessed
pursuant
to
section
4700
of
the
Income
Tax
Regulations
and
subsection
26(7)
of
the
Income
Tax
Application
Rules.
Furthermore
Form
T3
used
in
making
such
an
election,
which
was
signed
by
the
appellant’s
agent,
contains
clearly
the
words
“Once
this
election
is
made,
it
cannot
be
revoked”.
There
is
no
equity
in
tax
law
and
the
Board
cannot
legally
base
its
decisions
on
compassionate
grounds
no
matter
how
valid
these
may
be
but
must
arrive
at
its
decisions
on
the
basis
of
the
provisions
of
the
Income
Tax
Act
as
passed
by
Parliament.
In
the
circumstances,
the
appeal
must
be
dismissed.
Appeal
dismissed.
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