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Montreal, the fifth day of February, 1976. per Monette, Clerk, Michaud, Barakett & Levesque (signed) André Michaud (signed) Jean-M Gagne The appellant testified that in the taxation years 1975, 1976 and 1977, it was not he who billed clients directly for services which he had provided to them, he was not paid directly for these services, and he was not directly responsible for collection — it was the firm that was responsible for all these tasks. ... In my view, they clearly did not make that latter type of contract — the appellant is not a partner in the firm, in any meaning of the word. ... I find that the respondent’s analysis of the contractual obligations in his reply to the notice of appeal in the case at bar does not in itself categorically establish that the appellant was an employee — even were that analysis correct. ...

This sum shall be payable as follows: — $500.00 payable on November 12,1976 and $500 payable on January 12,1977. — The balance of $16,000.00 shall be payable in 48 equal consecutive monthly payments of $333.33 each. The first payment shall be due on December 12, 1976 and the others on the twelfth day of each month until November 12, 1980 inclusive. — Should the respondent predecease the petitioner, the respondent shall renounce that amount that has not been paid. — Notwithstanding the preceding paragraphs ACKNOWLEDGES the mutual and reciprocal waiver by the parties of any other right to alimony. 4. ... The first instalment shall be due on December 12, 1976 and payments shall continue thus on the twelfth day of each month until November 12, 1980 inclusive. — ORDERS the petitioner to pay on his death to the respondent a sum of $10,000.00. ...

Boychuk Construction received a report prepared by Underwood McLellan & Associates Limited on the “Development of Residential Land in East Nutana” where the land was situated. ... There is a further report from Makale, Holloway & Associates Ltd re Wildwood Park Development, indicating that the Wildwood scheme had been adopted by the City of Saskatoon in 1966. ... Its very close proximity to the City limits of Saskatoon — and being so close to property purchased by the City of Saskatoon on the perimeter of its city limits — impels me to the conclusion that having regard to all the facts of this case, the only logical reason for the initial purchase would be the prospect of a future sale or development of the land and to turn it to a profit, which indeed happened. ...

. — Ross Brown agreed to participate in the engagement of a firm of consulting engineers to draft a plan of subdivision covering the farm. ... The position of the respondent was that: —during 1968, construction had begun on an Ontario Hydro four million kilowatt thermal generating station at, Nanticoke, Ontario, an area close to the farm. — During 1967 and 1968, the Steel Company of Canada acquired, by way of options, approximately 6,600 acres in the area of the farm, and in an official announcement on or about April 24, 1968 the Steel Company of Canada was indicated as the optioner of the 6,600 acres in the area of the farm. — At the time the farm was acquired, the appellant was employed as a real estate salesman. —Several attempts were made by the appellant to subdivide the farm into residential housing lots. — Prior to the appellant having moved onto the farm to occupy it and undertake a small degree of farming activity, representations had been made to the Woodhouse Township Council to subdivide the farm at a special meeting of that Council held on November 12, 1970. — Further representations were made to the Township on March 1, 1971 and April 1, 1971. ...

The appellant also filed a certificate of incorporation to show that a company was incorporated on May 25, 1970 under the name of Varga Art & Frames Shop Ltd. ... However, the business was never transferred to the company and the appellant and his wife advanced more than $3,250 to the business, viz $5,000 according to Exhibit A-1, Tab 4, detailed as follows: $ 300.00 Our statement of account May 12th, paid out to Varga Art & Frames Shop which said cheque was given to Vargas and Wayne Rudolph to take to 3,250.00 the Bank of Nova Scotia to pay out a loan of the Vargas June 12th, paid to Varga Art & Frames Shop to deposit at 1,450.00 Bank on the instructions of Wayne Rudolph $5,000.00 According to this exhibit, it appears that the $5,000 was distributed by the solicitor who handled the incorporation of the company. ... The appellant testified that he never bought any paintings for his own use and enjoyment, and that the ones under discussion were acquired to be transferred to Varga Art & Frames Shop Ltd. ...

Since considerable reference was made to the appellant’s 1973 and 1974 financial statements, it would appear best to reproduce the “Statement of Earnings and Retained Earnings” of the appellant for the years ending December 31, 1973 and 1974: HADY CONSTRUCTION (1971) LIMITED STATEMENT OF EARNINGS AND RETAINED EARNINGS FOR THE YEAR ENDED DECEMBER 31, 1974 REVENUE (note 1) 1974 1975 $ $ Construction revenue 388,560 128,091 Repairs and maintenance revenue 17,272 26,778 405,832 154,869 LOSS ON RENTAL OPERATIONS (Schedule) 46,653 12,537 GENERAL AND ADMINISTRATIVE EXPENSES Salaries and employee benefits 50,552 39,810 Management fees 5,250 6,600 Rent 2,458 4,951 Auto and truck expense 6,523 5,653 Depreciation 3,247 4,634 Audit and legal 2,450 3,790 Utilities 1,015 946 Insurance 1,125 313 Bank charges and interest 10,042 8,068 Mortgage interest 4,667 6,782 Miscellaneous 3,560 2,272 90,889 85,819 268,290 58,513 PROVISION FOR INCOME TAXES Current 117,200 7,900 Deferred (1,100) 13,500 116,100 21,400 NET EARNINGS FOR THE YEAR 152,190 37,113 RETAINED EARNINGS—BEGINNING OF YEAR 42,527 5,414 RETAINED EARNINGS—END OF YEAR 194,717 42,527 The Schedule or Rental Operations for each of the years 1973 and 1974 are as follows: HADY CONSTRUCTION (1971) LIMITED SCHEDULE OF RENTAL OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1973 $ RENTAL INCOME 9,262 RENTAL EXPENSES Amortization of lease commissions 974 Depreciation 4,983 Mortgage interest 7,010 Realty taxes 1,870 Repairs and maintenance 6,962 21,799 LOSS ON RENTAL OPERATIONS 12,537 HADY CONSTRUCTION (1971) LIMITED SCHEDULE OF RENTAL OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 1974 $ RENTAL INCOME 61,896 RENTAL EXPENSES Amortization of deferred charges 1,181 Depreciation 20,407 Mortgage interest 33,976 Realty taxes 1,627 Repairs and maintenance 38,571 Bad debt expense 12,787 108,549 LOSS ON RENTAL OPERATIONS 46,653 The balance sheet for each year showed the following assets for 1973 and 1974: ASSETS 1974 1973 CURRENT ASSETS $ $ Accounts receivable (note 2) 292,704 180,022 Prepaid expenses and deposits 3,020 1,501 Unbilled costs and profits (note 1) 461,966 30,582 Non-interest bearing advance to employee 2,000 759,690 212,105 REVENUE PRODUCING PROPERTIES (note 2) —at cost 923,180 510,997 Accumulated depreciation 25,390 4,983 497,790 506,014 FIXED ASSETS—at cost 20,467 20,467 Accumulated depreciation 12,840 9,593 7,627 10,874 DEFERRED CHARGES (note 1)—at cost, less accumulated amortization 10,915 13,353 1,276,022 742,346 It is to be noted that the current assets really are only a receivable in some form or another and that there are fixed assets having an undepreciated capital cost of only a few thousand dollars. ... Also, if there were separate statements and earnings and retained earnings instead of just one and if repairs and maintenance revenue were included with construction revenue, the statements would be as follows: 1973 1974 Construction revenue 154,869 405,832 Expenses 83,819 90,889 — Profit 71,050 314,943 Rental revenue 9,262 61,896 Expenses 21,799 108,549 (LOSS) 12,537 46,653 It follows from the two above statements that there obviously would be no retained earnings from rental operations. ...

. — In the alternative, the amount assessed was properly included in income as benefits conferred upon the appellant qua shareholder by the company within the meaning of subsection 15(1) of the Income Tax Act. Evidence and Argument The pertinent facts established, as I see them, were: —Springwood did advance to the appellant the amount of $50,645. in 1975; —the advance which was in the form of construction material and labour went into the building of a personal residence for the appellant (the house); —even before it was completed, the house was encumbered by further obligations—at least a first mortgage of $60,000 and a second mortgage of $35,000; — no amounts were repaid to Springwood in 1976; — no arrangements were made with Springwood to repay the advances; — in 1977 the house was sold, and the $16,522.02 noted above was all that remainded available to pay off any part of the obligation to Springwood. ...

In order that the sons might share equally in their responsibilities to their parents, Edward drafted a deed dated September 14, 1967 whereby each of the three brothers would acquire a / interest in the property, each paying an amount of $4,000 and assuming / of the carrying costs on the property (Exhibit A-1). ... Counsel for the respondent does not dispute that the appellants’ intention at the time of acquiring a [1] / interest in the property on September 14, 1967 was to have the appellants’ parents follow Dr Zamora’s advice and move to the Saltfleet farm so that they might be closer to their sons. ... Appeals allowed. 1 / interest in the property, an amount of $14,000 was paid by the brothers to Edward as their cash investment in the property (Exhibit A-1). ...

He was assessed by the respondent accordingly. 3.6 In May 1971, the appellant borrowed from his employer, inter alia, the sum of $14,876.58, which he used to reduce his debt to the banking institution. 3.7 According to documents from the banking institution making the loan (Exhibit 1-1), the balance owed by the appellant stood as follows on December 31 for each of the years mentioned below: 1970 $12,500 and $9,500 1971 $10,000 1972 $10,000 1973 $ 8,200 1974 $ 8,400 3.8 In 1971 and 1972, the respondent allowed the interest paid in 1971 and 1972 as expenses in the appellant’s income calculation, but disallowed that paid in 1973 and 1974. ... All the information required by the respondent’s employees was provided. 4.3 Interest Counsel for the appellant cited the following cases:-Trans-Prairie Pipelines Ltd v MNR, [1970] CTC 537; 70 DTC 6351; — Lakeview Gardens Corporation v MNR, [1973] CTC 586; 73 DTC 5437; — MNR v Mid-West Abrasive Company of Canada Ltd, [1973] CTC 548; 73 DTC 5429; —Lyle A Meredith v Her Majesty the Queen, [1975] CTC 570; 75 DTC 5412. ...

During the taxation years in question, the appellant company received a total amount of $—- in subsidies from the Department of Cultural Affairs and the Canada Council. The amount $—-, received by the appellant in the form of subsidies, constitutes income within the meaning of ss 9 and 248 of the new Act. Alternatively, the amount of $-— was paid to the company in the form of research subsidies, pursuant to paragraph 56(1)(o) of the new Act. ...