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In two recent cases before the Tax Review Board — and Estate of Hyman Kamichik v MNR, [1973] CTC 2208; 73 DTC 177— Estate of Denzil Olaf MacNeill v MNR, [1973] CTC 2248; 73 DTC 189, Judge Flanigan, then Chairman of the Tax Review Board, held that an encroachment clause for the benefit of children must impose more than a moral obligation to do what a natural parent would do for his children. ... In the case at bar, the words used — “for the advancement, maintenance, education or benefit of any infant” — are little more than a suggestion to look after the children in a natural way, and cannot be considered to deprive the widow of a tax benefit simply because they happened to be used in the will. ...

At page 91 Mr Justice Mignault states the following:.. » Many factors undoubtedly influence the market price of shares in financial or commercial companies, not the least potent of which is what may be called the investment value created by the fact / or the prospect as it then exists / of large returns by way of dividends, and the likelihood of their continuance or increase, or again by the feeling of security induced by the financial strength or the prudent management of a company. ...

The appellant and his late brother, George William Harvey Pruden, carried on a business as well drillers in partnership under the firm name and style of Pruden & Sons in and about the Town of Selkirk, Manitoba until the said brother died on July 9, 1965. ... With reference to accounts receivable, I quote the last paragraph on page 2 of the agreement as well as paragraphs 3(a), (b) and (c) on pages 4 and 5, and which read as follows: AND WHEREAS for the purposes of this Agreement the accounts receivable of the business are to be determined, in accordance with generally accepted accounting procedure, by Messrs Vopsi, Matheson, Green & Company, the auditors of the business (and hereinafter called “the auditors’’)—such determination to be made as at March 1 AD, 1968. ... Notwithstanding the foregoing part of this paragraph, it is agreed that the purchase price being paid is as between the parties apportioned as follows, such apportionment however not to affect the sale of the business as a going concern and as a whole entity: (a) Accounts receivable to be determined as hereinbefore set out,—One ($1.00) Dollar; (b) All office equipment, trucks and automobiles (with the exception of the automobile more particularly described in paragraph 10 hereof, and now in the Vendor’s possession), machinery and equipment, and the like as more particularly set out in Schedule “A” hereto—Eleven Thousand ($11,000.00) Dollars; and (c) For all cash on hand and cash in the bank, and for all the remaining equity of the Vendor in the business, and for the right hereby given to the Purchaser to continue to use the name ‘‘Pruden & Sons” if he so desires, and for goodwill—Twelve Thousand, four hundred ninety-nine ($12,499.00) Dollars. ...

The Statement of Income and Expenses from which his claim arose is as follows: Income—Forage Crops $ 359_. Expenses—Salaries and Wages $. 363 Interest (Farm Portion only) 2,904 Taxes (Except income taxes) 314 Machinery Expense: —Gasoline and Oil 33 —Repairs 36 Veterinary Fees, Medicine, Breeding Fees 35 Feed and Straw 64 Containers and Twine 72 Custom Work 407 Accounting Fees and Office Expense 60 Clearing or Levelling Land 25 Tile Drainage 59 Small Hardware 29 Fees 5 $4,406 Capital Cost Allowance 403 Total Expenses $4,809 Total Income $ 359 Less Total Expenses 4,809 Excess of Income Over Expenses (4,450) Restricted farm loss—firsts'*. $2,500 50% ‘of balance of $1,950— 9:75 Claimed in 1974 $3,475 Contentions Basically, the position of the taxpayer was that he could not be expected to start operations in 1973 and make a profit in 1974. ...

The taxpayer gave evidence on his own behalf and was represented by Mr P Smith of the law firm Payne, Smith, Smith, Campbell & Gazzola of Guelph, Ontario. ... The taxpayer’s income tax return was prepared by an accountant, and upon receipt of the assessment notice, Mr Elliott took it to his lawyer’s office — the firm of Payne, Smith et al, where it was essentially the responsibility of Mr Payne. ... It would seem to me that the interpretation placed upon the circumstances by counsel for the Minister is more plausible — that the matter did not receive the attention it warranted (whether of the taxpayer or his advisers), and that no adequate explanation of the delay has been presented. ...

The sale price was $72,276.55 — $30,000 in cash with the balance payable to Mrs Germaine Carré-Gagnon in accordance with the contract of June 2, 1970 (Exhibit 1-1). 3.10 The October 18, 1976 decision by Lacourcière, J was filed as Exhibit A-1. ... The price decided upon was $150,000 and is broken down as follows: Book value and goodwill $ 72,000 Personal advances made to the company by Mrs Gagnon $ 40,000 Capitalized interest $ 38,000 $150,000 Payment on account 27,500 Balance $122,500 Payable in 779 weekly instalments of $192 and a final instalment of $432. In the end, this agreement was not given effect between the parties. 4, Act — comments 4.01 Act The provision of the Income Tax Act involved in the case at bar is paragraph 12(1)(c), which stipulates that interest must be included in income. ...

The prime object of the company was: to acquire, explore for and produce petroleum, natural gas and all related substances and minerals. 1965 Debits Debits Credits Balance July 28 Deposit $51,000.00 $51,000.00 July 28 Deposit $11,028.00 July 28 Deposit $ 8,272.00 $70,300.00 July 28 Pawnee Petroleums $50,000.00 $20,300.00 July 29 Alexy Spivack $ 1,000.00 $19,300.00 Aug. 3 Maraval Resources $ 8,272.00 $11,028.00 Aug. 3 Nassau Petroleums $11,028.00 — Mr Hilland, who in 1965 was the president of Nassau, said that company had taken a passive interest or put in another way, “had followed along with whatever Pawnee elected to do in the matter of settlement of the litigation with California Standard”. lt is to be remembered that Nassau acquired its 25% interest in the Renke lease from Pawnee on March 31, 1965, that is something more than one year after the litigation had been commenced and some two or three months before the action went to trial. ... It reads: Re: P & N G Lease; Frederick Renke to Pawnee Petroleums Ltd, dated February 19, 1964 This will confirm our agreement with respect to the legal proceedings now being pursued with respect to establishing our title to the above lease. ... Court costs and disbursements arising out of the aforesaid legal proceedings shall be borne as follows: Pawnee 371/2 % Nassau 25% Donaldson 18 /4% Maraval 18 / If the above correctly sets forth our understanding herein would you please execute and return a copy of this letter thereby concluding our agreement in this matter.” ...

(SN page 10). — Dow Chemical then remained as sole supplier in Canada. ... The bonus was in the range of $300,000 — $400,000 in a typical year. In one year, when there was exceptional profit, the bonus amounted to close to $1,000,000. ... Law — Cases at Law — Analysis 4.01 Law The main provisions of the Income Tax Act involved in the present case are subsections 246(1), 246(3), and 247(2); paragraphs 247(3)(a) and (c); and subparagraph 247(3)(b)(ii). ...

The first architect had a ski resort concept (fees — $750) which the appellant did not like. ... Law — Cases at Law — Analysis 4.01 Law Sections 3, 9, 38(1)(a), 39, 40 and 248(1) definition of “business”, are the provisions involved in this case. ... Mr Justice Noël in Racine, Demers & Nolin, (supra), gave a summary of the secondary intention test and I quote at 5103:... ...

For the respondent: — The appellant acquired the subject property with the intention of selling it at a profit at the first favourable opportunity; — The appellant did not acquire the subject property with an exclusive investment intention. ... I would like to... deal briefly with: — the basic test to be applied in a case for distinguishing capital gains from ordinary income and then deal with the application of that test to the circumstances of this particular case... — I would like to conclude by examining the doctrine of secondary intention. ... The Regin case (supra) did not provide support for the appellant, indeed there was no real indication of “how he might use the property” — just generally that he had some plans for it. ...