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., [1975] C.T.C. 2085, 75 D.T.C. 77 A J Frost: 1 I shall now give my decision in the above income tax appeal from an assessment pertaining to the 1971 taxation year, wherein the Minister of National Revenue assessed the appellant on his share of profits realized on the sale of an apartment building. 2 The appeals of Murray Armel, Joseph C Goldenberg and Gordon Atlin were heard, together with this appeal, on common evidence. 3 The appellant is a barrister and solicitor carrying on the practice of law as a partner in the law firm of Atlin, Goldenberg, Cohen, Gamble & Armel. In 1967, the appellant and his law partners, for an outlay of $6,333, acquired a one-third interest in St Clair & Warren Road Construction Company, a partnership engaged in the construction of an 80-suite apartment. ...

Morenish owned 49.9% of the shares of Y & R Properties Limited (hereinafter referred to as “Y & R”) and 73.5% of the shares of Imperial General Properties Limited. Kashel owned.65% of the shares of Y & R. On April 30, 1974, Kashel owned no shares in Y & R but the interest of Morenish in Y & R had increased to 52.37%. 4. ... They are Heap & Partners (Nfld) Ltd v MNR, 66 DTC 772 and Frappier v Her Majesty the Queen, 76 DTC 6066. ...

Contentions It was the position of the appellant that: — he purchased an interest in the property in question as a long-term investment; — he had never engaged in the business of buying and selling real estate for gain; — prior to January, 1967, he had never invested his savings in real estate; — he did not at any time actively pursue the sale of his interest in the said property nor deal with the property in any manner such as a trader or speculator would; —any gain realized by him upon the disposition of the said property constituted a capital gain accruing as the result of the normal and gradual appreciation in value of a property; —no portion of the proceeds of the sale of the property in question should be treated as profit realized in respect of an adventure in the nature of trade. ... Lord Dunedin says, in the case I have already cited, at page 423: ‘... ... In MNR v M & N E Lawee (supra), there was no indication that the taxpayers had entertained thoughts of resale at the time of acquisition, which Situation is the opposite of the one we have in the instant appeal. ...

L Berman & Co Ltd v MNR, [1961] CTC 237; 61 DTC 1150; 14. Olympia Floor and Wall Tile (Quebec) Ltd v MNR, [1970] CTC 99; 70 DTC 6085; 15. ... L Berman & Co Ltd v MNR, [1961] CTC 237; 61 DTC 1150; 22. John Francis Boland v MNR, 9 Tax ABC 389; 54 DTC 25; 23. ... MNR v Stewart & Morrison Ltd, [1970] CTC 431; 70 DTC 6295; 53. Stewart & Morrison Ltd v MNR, [1972] CTC 73; 72 DTC 6049; 54. ...

Faced with that illustration, the route or choice of routes by which Mr Deckelbaum might ensure his objective was obvious — promissory note, mortgage, etc. ... The more so when the term “arrangement” in this relevant section is qualified by the flashing red light “bona fide” — a term which, simply because it lacks precision, should be approached with the greatest of caution. ... The amount at issue in this appeal does not fulfill the conditions outlined in that section to exempt it from tax — no bona fide arrangements were made for its repayment. ...

Law — Cases at Law — Analysis 4.01 Law The main provisions of the Income Tax Act, SC 1970-71-72, c 63 as amended, involved in the present case are subsection 9(1) and paragraphs (a), (b) and (h) of subsection 18(1) and the definition of “personal and living expenses” as defined in subsection 248(1). ... Day & Ross Limited v The Queen, [1976] CTC 707; 76 DTC 6433; 10. MNR v Olva Diana Eldridge, [1964] CTC 545; 64 DTC 5338; 11. CIR v E C Warnes & Co Ltd, 2 TC 227; 12. MNR v L D Caulk Company of Canada Limited and Goldsmith Bros Smelting and Refining Co Limited, [1954] CTC 28; 54 DTC 1011; 13. ...

This Commission told him of a large piece of land with buildings owned by a bankrupt company, James United Steel, which was available, and he should contact the trustee, the firm of Clarkson, Gordon & Co in Montreal. ... I called him three or four days afterwards to arrange another meeting and made him the following proposition — I said: “Raymond, I like your idea, but ten people is way too many, and I think that the two of us could buy it: that would be plenty. ... Messrs Bergeron and Roy did everything to successfully complete their project, including a financial study by an engineer and discussion of a loan. they never put their property up for sale, and in his submission "when opportunity knocks it must be seized": The Queen v Stan fold Investment Corporation, [1974] CTC 19; 74 DTC 6035, and Hope Hardware & Building Supply Company Limited v MNR, [1967] CTC 120; 67 DTC 5085. ...

Contentions For the appellant: — In the spring of 1971, the appellant entered into an “oral option agreement” with his son and his son-in-law whereby he agreed to sell to them all the shares in the capital of Seal-Top. ... For the respondent: —The value of the shares on Valuation Day was $60,000; —The appellant sold the shares to Sam Catalano and Basil Cultrera in 1974 for the sale price of $50,000; —The fair market value of those shares at the date of sale was $225,000; —The sale was not an arm’s length transaction; — By virtue of paragraph 69(1)(b) of the Income Tax Act, the appellant is deemed to have received $225,000 for the shares; —The taxable capital gain on the sale of those shares was therefore $75,166.50; —The reserves of $14,667 in the 1975 taxation year and $7,333 in the 1976 taxation year were reasonable allocations for reserves in the taxation years in question for the portion of the proceeds of disposition not received by the appellant in the taxation year. ... BETWEEN: BASIL CULTRERA, of the Borough of East York, and SAM CATALANO, of the Borough of Scarborough, both of the Municipality of Metropolitan Toronto, (hereinafter called “the Purchasers”) OF THE FIRST PART, —and— ROSS CULTRERA, of the Borough of East York, in the Municipality of Metropolitan Toronto, (hereinafter called ‘‘the Vendor”) OF THE SECOND PART, —and— SEAL-TOP PAVING & CONSTRUCTION LIMITED, a Company incorporated under the laws of the Province of Ontario, (hereinafter called “the Company”) OF THE THIRD PART. ...

Contentions It was the position of the appellant that: — in September 1973, she was wrongfully removed against her will from her dual role as a director of and manager of the assets of McDonald Holdings Ltd, which positions she had a right to retain for life by an agreement between herself, McDonald Holdings Ltd and her children, which had been a pre-condition to her entering into an estate-freeze of her shares in McDonald Holdings Ltd; —the said amount of $14,107 received by her was for damages for breach of contract and was therefore capital in nature; — in the alternative, if there is not found to be contract of the nature as alleged, which is not admitted but is specifically denied, her children caused McDonald Holdings Ltd to pay the said amount to her as gifts for the care, maintenance and support and, as such, were payments of a capital nature. ... —Such termination was within the authority and capacity of Holdings. — No settlement or financial arrangement was made with the appellant by Holdings upon termination at September 20, 1973. ... —On December 11, 1973, the arrangement described in these proceedings calling for payment of a “retirement allowance” to the appellant was approved by the directors of Holdings. — Holdings had the authority and capacity to award such a retirement allowance. ...

The appellant testified that in 1974 he was required to attend court on 84 different occasions during hours when he was not on duty, and that the travelling expenses incurred in so doing were computed as follows: 4,368 miles @ 18¢ a a mile $786.24 61 half days parking @ $1.50 per half day 91.50 23 full days parking @ $3.00 per day 69.00 The appellant also claimed in his 1974 tax return a a deduction of $46 representing expenses incurred for lunches for 23 days @ $2 per lunch. ...