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The countries with which Canada has such agreements — at the present time are the following: the list of 14 countries named includes New Zealand. ... A 24-month period referred to above almost always will fall into three calendar years, as follows: Year No 1 (1968) — in which the teacher enters Canada; Year No 2 (1969) — throughout which the teacher probably will remain in Canada; Year No 3 (1970) — in which the teacher intends to leave Canada. ... Thus, in view of the very unusual and peculiar circumstances of this matter — and that comment is equally applicable to the appeal of Colyn P Walker v MNR (infra) which was heard by the Board directly after the present appeal on a substantially similar set of facts both of which appeals are to be disposed of on the same basis by agreement between counsel for the parties who are the same in both matters — the Minister should be regarded as being fully responsible for the above-mentioned overt act of his Deputy Minister in issuing in a formal manner an official interpretation — favourable to the present appellant — of said Article X in Information Bulletin No 41 for the benefit of “Professors and Teachers From Other Countries” and their employers in Canada. ...

Labour costs incurred for improvements to the hotel $ 1,489.50 For 1973 1. ... Bonus to Bernard Gauthier $ 9,000.00 3. Wages for two part-time employees $10,000.00 4. ... If the Board takes this as a base, the total cost of the materials would be $27,250 ($14,900 — 55 x 100), that is, a difference of $9,500 ($36.750 —. $27,250) with respect to the. total. ...

The balances of loans owed by the company to the appellant, as recorded on the books and records of the company as of December 31 in each of 1972, 1973, 1974 and 1975 were as follows: 1972 $138,929.84 1973 $182,630.12 1974 $244,516.98 1975 $265,255.45 4.05 During the years 1973, 1974 and 1975 the appellant withdrew from the company the following sums, which withdrawals were not recorded in the company’s books of account: 1973 $10,921.31 1974 $12,011.80 1975 $ 8,420.00 4.06 Prior to the incorporation of the company in 1969, the appellant acquired several rental properties in Toronto’s east end. ... (S.N. p 31, lines 8 to 12) 4.12 In fact, if the appropriate entries would have been made the figures would have been as follows: SUMMARY OF THE INDEBTEDNESS OF S TOBIS INVESTMENTS LIMITED TO SAMUEL TOBIS: DECEMBER 31, 1972 — DECEMBER 31, 1975 Column 1 Column 2 Column 3 Column 4 Column 5 Balance of Increase in Amount with Net increase Correct bal the share the share held from in the com ance of the holder loan holder loan the company pany’s in company’s account on account during during the debtedness dur indebted Year Dec.31st the year the year ing the year ness on Dec. 31st 1972 $138,929.84 N/A N/A N/A $138.929.84 1973 $182,630.12 $ 43,700.28 $10,921.31 $32,778.97 $171,708.81 1974 $244,516.98 $ 61,886.86 $12,011.80 $49,875.06 $221,583.87 1975 $265,255.45 $ 20,738.47 $ 8,420.00 $12,318.47 $233,902.34 $126,325.61 $31,353.11 $94,972.50 Explanatory Notes 1. ... Law — Precedent Cases — Analysis 5..01 Law The main provision of the Income Tax Act involved in the present case is paragraphs 15(1)(a), (b) and (c) which read as follows: 15(1) Where in a taxation year (a) a payment has been made by a corporation to a shareholder otherwise than pursuant to a bona fide business transaction, (b) funds or property of a corporation have been appropriated in any manner whatever to, or for the benefit of, a shareholder, or (c) a benefit or advantage has been conferred on a shareholder by a corporation the amount or value thereof shall be included in computing the income of the shareholder for the year. sections 131, 132 and 133 of the Ontario Judicature Act, RSO 1970, c 228 were also quoted. ...

If those were the facts, then there would be no exemption for the principal residence on the disposition of the property in 1977 — all of the capital gain would have been with respect to rental properties. ... The Minister in 1977 did allow the appellant a principal residence exemption to the extent of / of the total capital gain realized in that year. ... On that basis, the fraction of / is a mathematically more accurate expression of the ratio and, in my opinion, the apportionment of not more than / of the land adjacent to the building can be reasonably regarded as contributing to the use and enjoyment of the apartment unit occupied by the appellant as his principal residence. ...

The notice of appeal in its critical portions reads: The appellant, Dr D A Porter, was employed as Assistant Superintendent — Personnel by the Edmonton Public School Board during the years 1967 to 1969. ... The position of the respondent was that: — the appellant acquired in or before 1967, for personal use, a residential property at 26 Westbrook Drive, in the City of Edmonton in the Province of Alberta; — the property at 26 Westbrook Drive was occupied as a personal residence by the appellant and his family during the years 1967, 1968 and 1969; — following the appellant’s move to British Columbia in November 1969, the Edmonton residence remained vacant until it was sold; — the rental expenses claimed as a deduction from income in respect of property known as 26 Westbrook Drive, Edmonton were not outlays or expenses incurred by the taxpayer for the purpose of gaining or producing income within the meaning of paragraph (a) of subsection (1) of section 12 of the Act but were personal or living expenses within the meaning of paragraph (h) of subsection (1) of section 12 and paragraph (ae) of subsection (1) of section 139 of the Act; — the house situated on the said property was not acquired for the purpose of gaining or producing income within the meaning of paragraph (c) of subsection (1) of section 1102 of the Income Tax Regualtions and, therefore, no capital cost allowance is permitted under paragraph (a) of subsection (1) of section 11 of the Act: — rental expenses claimed as a deduction from income in 1972 in respect of property known as 26 Westbrook Drive, Edmonton, Alberta, were not outlays or expenses incurred by the taxpayer for the purpose of gaining or producing income within the meaning of paragraph 18(1) (a) of the Act but were personal or living expenses within the meaning of paragraph 18(1)(h) and subsection 248(1) of the Act; — the said property was a personal use property within the meaning of paragraph 54(f) of the Act and therefore the allowable capital loss and net capital loss deductions claimed by the taxpayer under paragraphs 38(b) and 111(1)(b) of the Act in respect of the disposition of the property have been properly disallowed in accordance with the provisions of subparagraph 40(2)(g)(iii) of the Act. ... The implementation of subsection 20(6) also requires adherence to other standard income tax rules — and of specific relevance to this case it is necessary that the “conversion” be for the “purpose of gaining or producing income therefrom”. ...

Contentions For the appellant: — The taxpayer, at the inception of and prior to acquisition, took the initi- ative and procured an agreement between the co-owners, in writing, maifestly designed to preclude sale. — The taxpayer has a demonstrable history of procuring real estate, with partners, and eventually acquiring the total interest, and never with the intention of resale. — The taxpayer had a consistent portfolio of investments in realty since 1956 (which continues to now) obviously not intended for resale, and has never engaged in speculation in retail, even up to the present time. — No effort had ever been made to sell the property notwithstanding inordinately attractive circumstances for sale (if acquisition and sale for profit was intended) by reason of development relating to proposed Highway 401, widely publicized in or about April, 1971. — The property was only sold once expropriation become imminent. — Investment in realty as a hedge against inflation is the antithesis of an adventure in the nature of trade. ... For the respondent: — The appellant at all material times was a lawyer practising in the City of London, whose practice included real estate transactions, and as a result thereof the appellant was very knowledgeable with respect to land values and speculation in land in and about the City of London; — in purchasing the property in 1969, the appellant had three partners, one of whom being a real estate agent, and another being a trader in real estate; — the appellant and his partners did nothing to improve the property or to convert it into an income-producing asset. ...

The taxpayer and his wife acquired their home in the country — containing some six acres of land — about 1949. ... The expenditures of $1,098.03, mentioned earlier herein, which were made by the taxpayer in his 1968 taxation year are as follows: Proportion of total land taxes amounting to about $400 $ 146.60 Fence Repairs 8.72 Machinery and Truck Expenses (station wagon) —Gasoline and Oil 17.64 —Repairs, Licenses, Insurance 12.58 Automobile Expenses: —Gasoline and Oil 20% of $87.83 17.57 —Repairs, Licenses, Insurance 20% of $201.86 40.37 Feed and Straw (for trees) 11.34 Seed and Plants 40.09 Fertilizers, Sprays, Other Chemicals 4.64 Light, Power 20% of $85.79 17.16 Other Expenses (Specify) — Use of office in house, tool shed and driving shed 1/7 of $737.95 105.42 Capital Cost Allowance (From Schedule) 675.90 Total Expenses $1,098.03 It should be noted that, in his Notice of Objection herein dated March 12, 1970, the taxpayer stated — “I contest this disallowance of farm- ing loss — details to follow”. ... So I pictured the bush there as being marketable some day and I planned it for the time, just as our government plans for seventy years of age, charges us for our old age pension now and they pay you at seventy years — it is now down to 65 years l realize, but it was originally seventy years — that is the type of thing I was planning for, an income for that time of life. ...

Several of the particulars contained in each of the above assessments “A”, “B”, “C” and “D” are set out in the following table: Original Taxation Amount Assessment taxpayer year end in issue A” — 1458091-2 First Roman June 30, 1963 $ 31,940.00 ‘B”1458089-2 First Roman June 30, 1962 140,000.00 ‘C” —1458088-2 Trans-Canada March 31, 1964 72,980.57 ‘D” — 1458094-2 second Roman June 30, 1965 320,588.81 The following are the particulars of the aforesaid single items in dispute herein as they are spelled out in the above-mentioned assess- ments “A”, “B”, “C” and “D”: Assessment (Primeau Argo Block Company Ltd) $ 31,940.00 “B” Add: Income from trading in securities (Minerales Inndustriales Del Peru) $140,000.00 “C” Add: Profit on disposal of mineral leases $ 72,380.57 “D” Add: Income from trading in securities (Black Hawk Mining Limited) $320,588.81 seemed to me that it was more desirable to get out my decision herein at this time supported only by short reasons general in nature than to hold up the completion of the matter somewhat indefinitely to enable me to summarize the voluminous facts of the matter and to prepare more adequate reasons. ... It should be further observed that, while the profits stated in assessments “B”, “C” and “D” allegedly arose out of the dealings of First Roman, Trans-Canada and Second Roman (ie the three predecessor corporations of the appellant Third Roman) in shares of mining corporations and mineral leases, it is, obviously, more accurate to say — on the basis of the evidence and material before me in this matter — that the above-mentioned profits arose out of the realization of certain capital assets by the three corporations mentioned above in the ordinary course of carrying on the operation of their respective mining businesses. ... In the result, as indicated earlier herein: the appeal of First Roman with respect to its 1963 taxation year should be dismissed and the relevant assessment “A” — 1458091-2 confirmed; the appeal of First Roman with respect to its 1962 taxation year should be allowed and the amount of $140,000 covering income from trading in securities (Minerales Industriales Del Peru) deleted from the relevant assessment “B” — 1458089-2; the appeal of Trans-Canada with respect to its 1964 taxation year should be allowed and the amount of $72,380.57 covering profit on disposal of mineral leases deleted from the relevant assessment “C” — 1458088-2, and the appeal of Second Roman with respect to its 1965 taxation year should be allowed and the amount of $320,588.81 covering income from trading in securities (Black Hawk Mining Limited) deleted from the relevant assessment “D” — 1458094-2. ...

The respondent contended: — The appellant was not in the business of money lending. — The appellant was credited with a shareholder’s advance in the amount of $101,050.00 by “Weisfeld Ltd Ltd” in prior to the Appellant’s 1977 taxation year. — “Weisfeld Ltd” became unable to repay the amount of $101,050.00 in the appellant’s 1977 taxation year. — The appellant suffered a net capital loss in the amount of $50,525.00 with respect to the amount of $101,050.00. ... The loan of $101,000 was provided as working capital — nothing more and nothing less — during the years 1973 and 1974, not during the year under appeal — 1977. ... The loan was a separate and distinct transaction — it had all the characteristics of just that (a loan) — quite distinctly different than that portrayed in Freud (supra), and it was an investment on capital account, not a trading operation on income account. ...

In 1972 he purchased the F & M farm adjacent to the property under discussion at $2,000 per acre. ... In the fall of 1974 the appellant’s property was annexed to the city but the F & M property was not.,. ... He: paid $2,000 per acre for the F & M property in 1972 and was ready to pay the same price for the appellant’s farm in 1974. ...