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Attached hereto is a Certificate executed by Electro- Technical Labs (Alberta) Ltd. dated July 15th, 1958 (Appendix “J”), certifying that the said Resolutions set forth in Appendixes ‘ * H ’ ’ and ‘ ‘ I ” are in full force and effect. 17. ... I also think that the facts of the present case are distinguishable from those in Scammel & Nephew Ltd. v. ... Therefore, the appellant herein could not grant a ‘ concession ”, ‘ franchise ’ ’ or “licence” to itself. ...

After considering the facts and reasons set out in the Notice of Objection the Minister confirmed the assessment as having been made in accordance with the provisions of the Income Tax Act and in particular on the ground that, ‘ ‘ the allowance in respect of the capital cost of the depreciable property of the business known as Park Towers, Silver Heights Apartments and Silver Heights Shopping Centre has been determined in accordance with the provisions of subsection (3) of section 1100 of the Income Tax Regulations as the 1960 taxation year of the said business was less than 12 months in duration as defined by paragraph (a) of subsection (1) of section 1104 of the said Regulations.’’ The provisions of Sections 1100(1) (a), 1100(3) and 1104(1) upon which the Minister based his contentions read as follows: “1100. (1) Under paragraph (a) of subsection (1) of section 11 of the Act, there is hereby allowed to a taxpayer, in computing his income from a business or property, as the case may be, deductions for each taxation year equal to such amounts as he may claim in respect of property of each of the following classes in Schedule B not exceeding in respect of property (iii) of class 3, 5% of the undepreciated capital cost to him as of the end of the taxation year (before making any deduction under this subsection for the taxation year) of property of the class; (3) Where a taxation year is less than 12 months in duration, the amount allowed as a deduction under paragraphs (a), (d) and (h) of subsection (1) shall not exceed that proportion of the maximum amount allowable that the number of days in the taxation year is of 365. 1104. (1) Where the taxpayer is an individual and his income for the taxation year includes income from a business the fiscal period of which does not coincide with the calendar year, in respect of the depreciable properties acquired for the purpose of gaining or producing income from the business, a reference in this Part to (a) ‘the taxation year’ shall be deemed to be a reference to the fiscal period of the business, and (b) ‘the end of the taxation year’ shall be deemed to be a reference to the end of the fiscal period of the business. ’ ’ Under Section 1100(3) it is provided that, if a taxation year is less than 12 months in duration, the amount allowed as a deduction under Section 1100(1) (a) should not exceed that proportion of the maximum amount allowable that the number of days in the taxation year is of 366 which in the present case would be 61 days. ... Thus the question for determination resolves itself into the very narrow one as to whether the income received by the appellants was income from a. business, as contended by the Minister, in which event the appellants would only be entitled to 61 / 366ths of the capital cost allowance, or whether it was income from property, as contended by the appellants in which event they would be entitled to deduct a capital cost allowance for the entire year. ...

"‘Should the government make it impossible for the order to go through as we have outlined, and insists upon collecting the new tax, the dealer in that event will have to assume same. ‘ ‘ I should also in fairness refer to another letter of the defendant’s, dated April 27, 1931, addressed to one Lison, who, I think, was a salesman of the defendant, and which Mr. ... ‘‘Understand, when we invoice the goods, the goods become the property of the dealer, therefore if he should fail or become a bankrupt, the goods carried in our warehouse would be considered part of his assets, which we would have no claim upon. ‘ ’ The practice suggested in the defendant’s circular letter to its salesmen was carried out and these special sales were all made after April 1, 1931. ... There are two qualifying provisions in sec. 86(1) (a) of the amending Act, which I should at once mention, and they are as follows: " i Provided further that in any case where there is no physical delivery of the goods by the manufacturer or producer, the said tax shall be payable when the property in the said goods passes to the purchaser thereof. ...

Didace Dufresne Calcul des bénéfices conférés à ses enfants lors de deux émissions d’actions de “DUFRESNE ET FRERES LTEE” Emission de 75 actions ordinaires le 31 décembre 1960: Valeur des actions des enfants après l’émission: 90 actions à $1,087.00 $ 97,830.00 Valeur des actions des enfants avant l’émission: 15 actions à $1,421.00 21,315.00 Valeur transférée 76,515.00 Prix payé—75 actions à $100.00 7,500.00 Element de don $ 69,015.00 Bénéfice conféré par Didace Dufresne: $69,015.00 X $ 68,596.73 Emission de 270 actions ordinaires le 21 décembre 1961: Valeur des actions des enfants après l’émission: 360 actions à $540.00 $194,400.00 Valeur des actions des enfants avant l’émission: 90 actions a $1,000.00 90,000.00 Valeur transférée 104,400.00 Prix payé—270 actions à $100.00 27,000.00 Elément de don $ 77,400.00 Bénéfice conféré par Didace Dufresne: $77,400.00 $ 76,930.91 By his Reply to the Notice of Appeal, the respondent put the above portions of the Notice of Appeal in issue and, in effect, pleaded that what had been done was that the company had conferred a benefit on its shareholders that was exempt from income tax by Section 8(1) (c) (iii) of the Income Tax Act. ... At the hearing, the parties filed an ‘‘ Admission de Faits’’, the effect of which I have already stated, to the extent that I regard it as relevant, in my recital of the facts. ... That being so, I do not have to decide whether the other acts that took place as a necessary part of the action required to create those special circumstances were ‘ ‘ transactions ’ ’ (English version) or ‘‘opérations’’ (French version) within the meaning of the statute. ...

‘ The amount to the credit of the depreciation and depletion reserves, as I understand it, amounted to some $1,900,000, in considerable part consisting of investments and cash, and, I think, it is correct to say, that a portion of such reserves was in a form not available for distribution. ... It remained an uneapitalized surplus available for distribution, either as dividend or bonus on the shares, or as a special division of an ascertained profit... and in the hands of those who received it, it retained the same characteristics. ’ ’ It. might be convenient here to observe that the effect of the notification of the Company here, that the dividend paid came from the depreciation and depletion funds was no doubt done with the intent that it might assist in protecting the recipients from liability to taxation, but as Eve, J. stated in the Bates case, the mere impressing of these distributions with the appellation of ‘‘Depreciation and Depletion Reserve Funds of the Company,’’ cannot determine their true character. ... Even if the dividends paid out were derived from capital, the same could be lawfully paid therefrom by virtue of sec. 98 of the Companies Act, which permits mining companies to pay " " dividends out of its funds derived from the operations of the company, notwithstanding that the value of the net assets of the company may be thereby reduced to less than the par value of the issued capital stock of the company...”’ ...

For the appellant it is contended that the profit so realized was not " * income”, that the purchase of the shares was entered into as an investment, and that the realization of a profit when the shares were sold was merely the realization of an enhancement in value of that investment and therefore a capital gain ‘not subject to tax. The appellant was incorporated in 1930 under the Dominion Companies Act, as "‘Gairdner & Company, Ltd.’’ ... C) and Dominion Malting was to pay to it or to whom it might direct, a commission of five per cent or $32,500.00, but the appellant turned its rights over to its associate—Gairdner & Company, Ltd. ...

Ross & Coulter, [1948] 1 All E.R. 616 at p. 625, per Lord Thankerton. 13. ... & W. 191, per Parke, B. B. Canadian Cases on Interpretation of Taxing Statutes 1. ... & G. Grant Construction Co. Ltd., 47 W.W.R. 125 at 128, per Munroe, J. 5. ...

They may be summarized briefly..he.7 *. agreement dated September 19, 1938,.. / T,. /•.. ... Ex. 100; Moore & Company v. Inland Revenue [1914-15] S.C. 91; Robert Addie & Sons’ Collieries, Limited v. ... & F. 355, 565; Burton v. Reevell et al., (1847), 16 M. & W. 307, 309; The Queen on the prosecution of J. ...

At page 030, I put my view of the purpose of section 6(a) and the construction that ought to be placed on it in these words: ‘ ‘ The section is couched in negative terms. ... Tax Cases 15 at 14, that income is earned not by the making of expenditures but by various operations and transactions in which the taxpayer has been engaged or the services he has rendered in the course of which expenditures may have been made, I described the disbursements and expenses of section 6(a) as “those that are laid out or expended as part of the operations, transactions or services by which the taxpayer earned the income ’ ’, and then went on to say: "They are properly, therefore, described as disbursements or expenses laid out or expended as part of the process of earning the income. ...

The decision in Pioneer Laundry & Dry Cleaners Ltd. v. Minister of National Revenue, [1940] A.C. 127, [1938-39] C.T.C. 411, makes it clear that the Minister’s discretion is quasi-judicial and not arbitrary but subject to review. ... I must assume that she is alive and speculate in that region of phantasy as to her prospect of continuing to live. ’ ’ ’ The British Columbia Court of Appeal reasonad in the same way in Mah Ming Ju v. ...