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(b) Profit respecting the sale of property at Yonge and Gerrard; 1971: $13,000, 1972: $215, 1973: $9,150 (i) in 1971, on or about August 3, 1971, the Appellant entered into an agreement with Calsto Investments Limited (“Calsto”), a company in which the Appellant was. a shareholder, whereby Calsto agreed to ^ employ the Appellant, as a manager; (ii). in 1971, the Appellant received a cheque for an amount of $13,000 from Calsto. notated thereupon to be in payment of a personal management fee; (iii), in 1971. Calsto recorded the payment of the $13,000 to the Appellant f as a management fee on its Statement of Income and Expense; (iv) in 1971, Starmount Investments Ltd (“Starmount”), a company controlled by the Appellant, did not have any agreement with Calsto to provide management services to Calsto: (v) in 1971, the Appellant incorrectly attributed the $13,000 payment received from Calsto to Starmount, and in preparing his income tax return for 1971 the Appellant did not report the $13,000 receipt from Calsto as his personal income, but rather recorded the $13,000 as the income of Starmount; ’(vi) in 1972, the Appellant received a cheque for an amount of $100 from Calsto which represented payment of a management: fee from '— Calsto to the Appellant; (vii) in 1972. an amount of $115 was credited to the Appellant’s shareholders account with Calsto representing payment of a management fee from Calsto to the Appellant; (viii) in 1972, in preparing his income tax return for that year, the Appellant did not report as income the amounts referred to in the immediately preceding sub-paragraphs 2(b)(vi) and 2(b)(vii); (ix) in 1973, the Appellant received a cheque for an amount of $9,150 from Calsto representing the Appellant’s share of proceeds from a litigation settlement, which cheque was apparently deposited into a bank account of Starmount’s; (x) in 1973, in preparing his incomé tax return for that year, the Appellant did not report, the amount of $9,150 received by him. ...

. — refinancing of all-existing liens; — purchase of preferred shares in the Cie de Gestion Marcel Guimond Ltée (to be incorporated); this company must use the proceeds from the sale of these preferred shares to buy 50% of the common shares in Riverains Transport Inc. ...

. — December 1 to December 5, inclusive December 9 to December 12, inclusive 7:00 p.m. to 9:00 p.m. — December 1, 2, 10 and 11 Members of the Planning Board staff will be present at all times to explain the proposals and answer questions. ...

The other $100,000 was paid with the funds of the trust. 3.8 In its income tax returns the appellant trust claimed the deductibility of the following amounts of interest paid to the Bank of Montreal, with respect to the above-mentioned loans: 1970 $110,114 1971 $ 9,802 1972 $ 1,432 3.9 it was proven that the only loans made from 1968 to 1972 were those made at the Bank of Montreal and described in paragraphs 3.6 and 3.7.., 3.10 According to Mr Ludwick (referring to the 1970 financial statement) later in 1970, probably in the fall, the trust had sold 128,675 shares of Gulf Oil Canada Limited for $1,966,255. ...

In fact, the plan was to sell Kitchener City Hall and replace the market building for a $15 million office and commercial development. 3.11 In their testimony, the appellants and Mr Kelleher affirmed that the plans of the said development were not known to them and that they were even secret. 3.12 In an article, however, (Exhibit A-1) written in Kitchener-Waterloo Record on June 25,1971 and entitled “Public” ‘not kept out of city plans’ ”’ it is written: Citizens of Kitchener have not been shut out of urban renewal discussions as some critics of a $15 million downtown development claim. ... It bought undeveloped land, subdivided and serviced it and sold the lots (transcript p 62); (n) in addition to owning a cottage and a personal home, the appellant owns a property at Sunset Street in Kitchener, Ontario; (o) in the early seventies, he also owned a few small apartment buildings in Kitchener. 3.20 On the advice of his accountants, the appellant considered the transfer of the property to Tartan as a sale and the profit of $61,000 ($185,000- $63,000 = $122,000; Harper $61,000; Kelleher $61,000) as a capital gain. ...

The question of whether or not the agreements are a sham has also been raised, and the case of MNR v James A Cameron, [1972] CTC 380: 72 DTC 6325, has been cited, and at page 384 [6328] thereof, there is a comment by Lord Justice Diplock in Snook v London & West Riding Investments, Ltd, [1967] 1 All ER 518 at 528. ...

The management fees, claimed as deductible expenses in the notices of appeal, having been consented to by the appellants, the two principal issues remaining in these appeals are—first, whether the profit realized from the sale of property referred to as the Gutta Percha & Rubber Limited property (hereinafter called “Gutta Percha property”) in September 1963 was the result of a transaction on capital account and a non-taxable capital gain or, secondly, whether the profit arose from an adventure in the nature of trade and was therefore taxable income. ...

The agreement set forth is that “... although the land has been registered in the name of Vincent DeBenedictis by virtue of a Deed registered on the 1st day of October 1956 as No 48561, the said land is owned in common by Vincent and Giovanna DeBenedictis and any residence built on it in the future shall also be owned in common”. ...

(Traité de droit civil du Québec, Vol 13 — H Roch, R Pare, page 335) The contribution of the partner to the partnership pursuant to Article 1830 of the Civil Code may consist of property, credit, skill or industry. ...

The appellant’s argument was as follows, and I quote paragraphs 2 and 3 of the notice of appeal: (2) Grounds of appeal The appellant disagrees with the notices of reassessment, and considers that the amounts indicated in (1) are not taxable so far as he is concerned for the following reasons: (a) the rules for appropriating capital gains and income (s 74(1) and 74(2) of the Income Tax Act) do not apply consecutively to a change of matrimonial regime from community of property to separation of property, because in order for those rules of appropriation to apply there must have been a transfer of the ownership of property, and this is impossible in the circumstances since, according to all the available precedents, the ownership of common property is indeterminate so long as the community exists; (b) this argument is also that made by Mr Marc Jolin in an address to the annual meeting in Quebec (1979) of the Canadian Tax Foundation, titled “Aspects fixcaux des régimes matrimoniaux au Québec” [tax considerations in Quebec matrimonial regimes] (see p 43 of the address); (c) this argument is also that made by Mr Pierre Dussault in an address given to the annual meeting (1974) of the Canadian Tax Foundation, titled “The taxation of spouses — A Quebec perspective” (see pp 348 to 350 of the address); (d) the validity of these arguments was confirmed on June 22, 1979 by the action of the National Assembly of Quebec in tabling Bill 42, which among other things was designed to prohibit what had previously been possible, namely the splitting of income and capital gains by the technique of changing the matrimonial regime from community of property to separation of property. ...