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If I were to race the — and his younger brother might be worth half that. ... Income tax — Federal — Bonus received for pre-payouts of mortgages — Whether The taxpayer purchased mortgages from several brokers. ... Income tax — Federal — Income Tax Act, RSC 1952, c 148 (am SC 1970-71-72, c 63) — The taxpayer, a self-employed plumbing contractor, did not file income tax returns for 1973 to 1976. ...

In 1967 the firm of Frappier & Holland was incorporated by the appellant and her husband who also worked as an investment dealer for Ord, Wallington & Co Ltd, and operated a business similar to that of Ord, Wallington & Co Ltd. ... Alternatively, he holds that the amount of $49,029.03, if expended, was not spent to earn income from a business she was Carrying on but was spent to protect the future business of Frappier & Holland Inc with which she was connected or, again, the amount was spent to acquire for Frappier & Holland Inc the clients who, through her, formerly bought securities from Ord, Wallington & Co Ltd which in either case the respondent contends would be a nondeductible capital gain. ‘ Even though the appellant testified that she was on a strict commission basis with Ord, Wallington & Co Ltd, and that she received no directives from the company as to working hours or the manner of dealing with clients, I am of the opinion that the appellant was not an independent contractor but was an employee of Ord, Wallington & Co. ... There is no evidence that the appellant billed Ord, Wallington & Co Ltd for services rendered as an independent contractor. ...

The firm had the usual type of agreement that in the event of one of the partners ceasing to be a member of the partnership — either by death or departure for other reasons — the partnership would carry on. ... One of the subsections — 37(2) — provides that he must not have been a partner or a proprietor in any other business. ... I think that he made his choice in 1969 and the preceding years and is now unfortunately — since it has been accepted by the Department — bound by that result. ...

A portion of that letter is herein set out: Total expenses (as claimed) $3,000.67 Plus: Capital cost allowance 620.00 Total 3,620.67 Less personal portion 12212 2,802.18 15779 $ 818.49 15779 Less Reimbursement (not included in total income) $ 448.32 Allowable claim $ 370.17 Law The sections of the Act involved in the present case are paragraph 8(1)(h) and subsection 8(2) which read as follows: 8. ...

Conn proceeded to have plans drawn up for a motor hotel on each of the Great West and 4th Avenue sites expending on such plans the following amounts: (i) 4th Avenue site — $1,081.57 (ii) Great West property — $1,065.00 8. ... They are: (1) Bel-Conn Building — 14 storeys (2) Americana — 50-suite apartment (3) Westerner — 30-suite apartment In 1959, because of Conn’s experience in financing and building apartments, he was approached by Mr Katchen, apparently ignoring the fact that the latter was a real estate dealer. ...

This interpretation applies to the interest earned by our company. — Moreover, our corporation maintains an office with a telephone listing and clerical staff is employed on a full time basis. — Presently our company is erecting an industrial building where our own building staff is employed. — Our company owns a large tract of land and ample current assets for development purposes. — From the foregoing, it is considered that our corporation is engaged in an active business. The Reply to Notice of Appeal sets out the contentions of the respondent: — During the 1972 taxation year, the appellant earned gross rental income amounting to $24,106.70; — The appellant did not provide its tenants with any special services; — The appellant has invested idle funds in term deposit certificates since 1964 and has never used these funds in the course of any business; — In the 1972 taxation year, the appellant earned interest income amounting to $29,874.48 from the investment of idle funds amounting to $335,000; — The appellant was not engaged in any money lending business during the 1972 taxation year; — The interest and the rental income earned by the appellant during the 1972 taxation year represented income from property; — The interest and the rental income earned by the appellant during the 1972 taxation year did not result from the carrying on of an active business. ... In pointing up the nature of the income — rentals and interest — as opposed to the source of the funds, and the powers of the corporation, the respondent has highlighted the main difference between his views and those of the appellant. ...

The contention of the respondent is that for the said year the maximum cca allowable to the appellant was $1,783.88. 3.04 One can read the following figures in the 1974 to 1979 income tax re- turns of the appellant: INCOME EXPENSES LOSS (including cca) 1974 $64.34 (potatoes) $4,414.00 $4,349.66 $3,224.74 (cca) 1975 $1,198.67 (vegetables) $7,227.66 $6,028.99 $3,734.74 (cca) 1976 $626.50 (grinding and chickens) $4,281.73 $3,655.23 1977 $1,059.53 (grinding) $3,155.08 $2,095.55 nil (cca) 1978 nil $6,462.58 $6,462.58 nil (cca) 1979 — — $4,064.00 In 1978, the appellant in his return described his work as “hobby farmer” and explained his “schedule of loss” as follows: James Luchuck Hobby Farmer Schedule of loss Net Loss — 1978 (6,462.58) Claim 78 ($2,500.00) 1 / ($6,432.58 — $2,500) ($1,966.29) ($4,466.29) Loss Forward to 79 ($1,996.29) ($6,462.58) 3.05 In his 1974 return and for the following years, the appellant declared as self-employment: Type of business: Market gardener & drill grinding Principal commodity manufactured or sold or service provided: Fruits and vegetables (onions, potatoes) mechanical repairs, drill grinding machine service. ... Law — Cases at Law — Analysis 4.01 Law The main sections of the Income Tax Act involved in the present case are subsections 31(1) and (2). ...

The following information may be summarized from the notices of appeal: — The appellant is a farmer, involved in cattle raising and cattle buying, residing near Boissevain, Manitoba. — The appellant and his wife Barbara Ransom (“Barbara”) are the sole beneficial owners of the common stock of Don Ransom Livestock Ltd (“Livestock”) and Don Ransom Holdings Ltd (“Holdings”) with Barbara owning 25% of the common stock of each corporation. — The Tennessee Game Farm (“TGF”) is a commercial version of a city zoo, located on 150 acres of land in close proximity to Nashville, Tennessee, in the United States of America. — Lloyd Tytlandsvik (“Lloyd”), the appellant’s father-in-law, and Leonard Peterson (“Len”), the appellant’s brother-in-law, along with their spouses, have since late 1971 been active in the management and operation of the TGF. — For financial reasons, in 1972, the appellant was asked to invest some funds in the TGF. — The TGF operates with a fiscal year terminating on December 31st of each year. — In its 1972 to 1976 fiscal years the TGF incurred operating losses after depreciation as follows: 1972 $37,985.64 1973 49,778.83 1974 38,151.47 1975 38,124.50 1976 25,904.59 — The portion of the operating losses of the TGF deductible by the appellant in each of the 1972 to 1976 taxation years of the appellant, in accordance with paragraph 96(1)(g) of the Income Tax Act, RSC 1952, c 148, as amended by SC 1970-71-72 c 63 (the “Act”) is: 1972 $ 7,597.13 1973 9,955.77 1974 11,445.44 1975 11,437.35 1976 7,771.38 — A substantial portion of the capital contributions made by the appellant to the TGF between November 1st, 1972 and December 31, 1976 were obtained by the appellant by borrowing the funds from Livestock. — The fiscal year of Livestock, at all material times, terminated at the end of February in each year. — Not having cash to repay Livestock, the appellant in February of 1977 decided to and did dispose of his interest in the TGF to Livestock for the amount of $103,000. — The financial statements of Livestock indicated a “Purchase of loans receivable — $103,000” and under the notes to the financial statement “Note #2 LOANS RECEIVABLE. ... By a resolution of its directors of even date, Holdings evidenced the aforementioned purchase. — The drawing account of the appellant with Livestock, at the material times, had balances as follows: Dec 31, 1974 $ 8,778.77 Cr. ... Based upon the above, the appellant’s position was outlined: — The unprofitable start up period for the TGF was extended due to the delay in the completion of the four lane access route and the requisite interchange, but satisfied that TGF would become profitable and also that its property would become more valuable, the appellant agreed to become a partner with a 20% interest in TGF. — The appellant, Lloyd and Len recognized that the appellant might be expected to contribute more capital as time went on and it was agreed that when and if the appellant’s capital contribution got around $100,000 his interest in the partnership would be increased to 30%. — Between November 1, 1972 and December 31, 1976, the appellant advanced a total of $104,660 US ($104,660 Cdn plus exchanges of $210.55) to the TGF, of which $96,660 US ($96,660 Cdn plus exchange of $194.46; $96,854.46 Cdn in total) was considered by the partners as the capital contribution of the appellant for his partnership interest which in 1974 was increased to 30% in accordance with the preceding paragraph. — The appellant with Lloyd and Len did form a partnership pursuant to the oral agreement between themselves. — The appellant did pay a total sum of $96,854.46 Cdn as a capital contribution to the TGF partnership. — The appellant did transfer his TGF partnership to Livestock in February of 1977 for the amount of $103,000 Cdn, thus incurring a taxable capital gain for his 1977 taxation year in the amount of $24,103.94; — The appellant did incur losses properly deductible, in accordance with paragraph 96(1)(g) and subsection 3(d) of the Act, in his 1972 to 1976 taxation years as follows: 1972 $ 7,597.13 1973 9,955.77 1974 11,445.44 1975 11,437.35 1976 7,771.38 In reply, the Minister assumed: — Livestock and the appellant were not persons dealing with each other at arm’s length; — Livestock and Holdings were not persons dealing with each other at arm’s length; — Bona fide arrangements were not made at the time the loans were made for repayment thereof; — The appellant was not in partnership with his father-in-law or brother-in-law in the operation of TGF during the 1972- 1976 taxation years; — The appellant did not share in the losses or profits generated by TGF during the period 1972- 1976; — During all material times the appellant was not actively engaged in the operation of TGF And the Minister contended: — There was no assignment by the appellant of a partnership interest in TGF to Livestock on February 27, 1977; — The appellant is not entitled to deduct a share of the losses incurred by TGF during the years 1972- 1976 (if such losses were incurred, which is specifically denied). — In the alternative the respondent submits that if the appellant did assign his interest in the partnership of TGF (which is specifically denied), the value of the said interest was not $103,000. ...

Together with Fernand Couillard, his brother, he founded the firm Fernand & Rolland Couillard (hereinafter referred to as the “F & R company”). ... Sutton Lumber & Trading Company Limited v MNR, [1953] S.C.R. 77; [1953] CTC 237; 53 DTC 1158; 62. ... Osler, Hammond & Nanton Limited v MNR, [1960] CTC 384; 60 DTC 1270; 64. ...

Contentions For the appellant: — I had more than sufficient income tax deducted at the source and remitted (monthly) instead of making quarterly payments; — The department actually owes me (interest) money; — My salary is credited (to my drawings account) as at December 31 of each year. For the respondent: — In the circumstances, the appellant is required to make further payments on account of the remainder of his tax liability by way of interim instalments of tax on or before April 30, 1977; — Interest is required to be paid in respect of unpaid or tardy instalments; — For this purpose, the appellant is deemed to be liable for instalments computed on the basis of the lower of his actual tax payable for the taxation year or the preceding taxation year; — The appellant did not pay any of the instalments of tax and consequently, interest is required to be paid on the balance of tax outstanding, as well as the arrears of instalments; — Tax in the amount of $8,293.18 had not been paid by the time the statutory delay for the filing of the return of the appellant of income for the 1976 taxation year — that is April 30, 1977 — and the arrears interest in the amount of $88.61 is correctly assessed in accordance with subsection 161(1) of the Income Tax Act; — The appellant failed to pay interim instalments of his tax when due as required by subsection 156(1) of the Income Tax Act, and the instalment interest in the amount of $900.08 assessed by the respondent pursuant to subsection 161 (2) of the Income Tax Act is properly payable. ... Turning to the other point at issue — the interest on the instalments — I would note a recent decision of this Board for some general comments relevant to the question of “bonus” and “salary”: G W Dorman Pulp Chip Company Ltd v MNR, [1981] CTC 2005; 81 DTC 18. ...