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Reasons for judgment Lamarre Proulx, J.T.C.C. [1] This is an appeal under the informal procedure from the assessment by the Minister of National Revenue (the “Minister”) concerning the 1995 taxation year. [2] The issue is whether, under subsection 126(1) of the Income Tax Act (the “Act”), the appellant may deduct from the income tax payable by him the tax he has paid on capital gains from lotteries in the United States, which gains are not subject to Canadian income tax by virtue of paragraph 40(2)(f) of the Act. [3] The facts on which the Minister relied in making his assessment are set out in paragraph 4 of the Reply to the Notice of Appeal (the “Reply”) as follows: [TRANSLATION] (a) for the 1995 taxation year, the appellant was resident in Canada for the purposes of the Income Tax Act; (b) during the 1995 taxation year, the appellant had capital gains from lotteries in the United States in the amount of $112,346 in American money; (c) amounts totalling $36,770 in American money were allegedly withheld for federal and state income tax in the United States; (d) under paragraph 40(2)(f) of the Income Tax Act (the “Act”), capital gains from lotteries cannot be considered in computing the capital gain from the United States; (e) consequently, the appellant is not entitled to a federal foreign tax credit since the said lottery gains are not taxable in Canada. [4] The appellant admitted paragraphs 4(a) to (d) of the Reply. ... She argued that under paragraph 40(2)(f) of the Act lottery gains are not considered to be capital gains in Canada and so are not taxable. ...

That application was accordingly dismissed. [6] In the alternative, the appellant argued that the Notice of Appeal dated June 18, 1998, should be interpreted in such a way as to be considered as being in itself an application to extend the time for filing a Notice of Appeal. That Notice of Appeal, which was transmitted by facsimile, is reproduced on page 2 of this judgment. [7] Although highly sympathetic to the appellant's request that his Notice of Appeal be considered in a very broad sense, the Court unfortunately cannot grant it since the amendment permitting the filing of a motion to extend the time for appealing came into effect when Bill C-28 was passed, that is, on November 1, 1998. [8] Consequently, I cannot interpret the content of the letter of June 18, 1998, as an application to extend time since the Act at the time did not permit an application to extend the 90-day time period to be filed, as that right was not created until November 1, 1998. [9] For these reasons, I must allow the respondent's motion and quash the purported appeal on the ground that the Notice was filed late. ...

In computing his income the appellant claimed this amount as a deduction. [2] The question of the taxability of relocation allowances has been considered by the courts before and it may now be taken as conclusively determined that they are taxable: A.G. ... (e) to an investigative body specified in the regulations, on the written request of the body, for the purpose of enforcing any law of Canada or a province or carrying out a lawful investigation, if the request specifies the purpose and describes the information to be disclosed. [5] The Audit Directorate, Department of National Revenue (Taxation) is an investigative body specified in the Regulations. [6] The matter was considered at some length in the 1996-1997 Annual Report of the Privacy Commissioner. ...

The Order did not provide that the 1995 payments be considered to have been paid. [5]      The position of the Appellant is that a combination of Catherine's Petition for Divorce, his Answer and Catherine's note together with the cancelled cheques is sufficient to establish that there was no doubt that the payments were made in 1995. ... The Court Order made in August 1996 contained no retroactivity provision of the type contemplated by subsection 60.1(3) which states: 60.1(3) For the purposes of this section and section 60, where a decree, order or judgment of a competent tribunal or a written agreement made at any time in a taxation year provides that an amount paid before that time and in the year or the preceding taxation year is to be considered to have been paid and received thereunder, the amount shall be deemed to have been paid thereunder. ...

I am not bound by the decisions of other judges of this Court but it is clear that Lamarre Proulx, T.C.J. thoroughly considered the matter and I have no reason to differ from the conclusion that she reached. [8]      As to the Charter argument, the cases of Cardin v. ... Her Majesty The Queen, 94 DTC 6075 (both decisions of the Federal Court of Appeal) considered the Charter issue in cases very similar to the present and concluded that the effect of the provisions in issue did not contravene the Charter. ...

The Appellant decided he was not entitled to deduct these expenses after he considered the decision of my colleague, Bell J., in Cuddie et al v. ... The Appellant acknowledges that should the kennel payment be considered payment in the performance of his duties of office or employment, then he is not entitled to claim his expenses as the cost of carrying on business. [4] I conclude that the Appellant was not in the kennel space rental business for the following reasons: (a) Having allocated 10% of his home costs as business expenses, these costs alone exceed the rental income with little evidence that they will decrease. ...

  [7]              The question in this case is whether the October letter should be considered as an application to extend time to serve a notice of objection ...   [8]              It is appropriate to consider this issue generously in favour of the taxpayer, but I have concluded that the October letter is so deficient that it cannot reasonably be considered as an application to the Minister for an extension of time for purposes of s. 166.1 of the Act ...

The definition of “benefit entitlement” is found in subsection 8302(1) of the Regulations: For the purposes of subsection 8301(6), the benefit entitlement of an individual under a defined benefit provision of a registered pension plan in respect of a calendar year and an employer is the portion of the individual's benefit accrual under the provision in respect of the year that can reasonably be considered to be attributable to the individual's employment with that employer. Subsection 8302(2) of the Regulations defines "benefit accrual" as follows: For the purposes of subsection (1), and subject to subsections (6), (8) and (9), the benefit accrual of an individual under a defined benefit provision of a registered pension plan in respect of a calendar year is the amount computed in accordance with the following rules: (a) determine the portion of the individual’s normalized pension under the provision at the end of the year that can reasonably be considered to have accrued in respect of the year, (b) where the year is 1990, 1991, 1992 or 1993, determine the lesser of the amount determined under paragraph (a) and (i) for 1990, $1,277.78, (ii) for 1991, 1,388.89, (iii) for 1992, $1,500, and (iv) for 1993, $1,611.11; For the 1991 taxation year, one looks at the benefit accrual for the 1990 taxation year, which is $1,277.78. ...

(a) during the 1987 and 1988 taxation years, the appellant carried out several real estate transactions for which her share of the profit on the sale of the properties was considered to be income from a business. The details of these transactions are as follows: Profit on sale 1987 1988 — 3960 rue Eméry, Montreal $19,080 North — 554 rue Laurendeau, Repen- $10,930 tigny — 7110 rue Baunard, St-Léonard $16,331 Income from a business $30,010 $16,331 (b) during 1987, the appellant and her spouse, Domenico Tudino, purchased two buildings which they sold the same year: the properties located at 3960 rue Eméry and 554 rue Laurendeau, having kept these properties for only a few months; (c) during 1988, the appellant and her spouse purchased another building, located at 7110 rue Baunard, which they kept for only a few months and resold the same year; (d) these properties were resold quickly for no specific reason, other than to realize a profit on the sale; (e) moreover, the appellant and her spouse kept these properties only for the periods of time set out below: Property Length of time owned 3960 rue Eméry 4 months 554 rue Laurendeau 2 months 7110 rue Baunard 4 months (f) the appellant and her spouse resold these properties through a real estate broker, and in the case of the property located on rue Laurendeau they even obtained an offer to purchase only a month and a half after they had purchased it; (g) when she disposed of these properties, the appellant personally realized the profits set out in subparagraph (a); (h) when the appellant purchased these properties, she had the intention of selling them at a profit and the possibility of selling the properties at a profit was a determining reason the appellant considered at the time she acquired them; (i) the appellant's profit from selling the properties constitutes income from a business; (j) the taxable capital gains of $15,005 reported for 1987 and of $11,429 reported for 1988, and the capital gains deduction of the same amounts, were revised accordingly, based on the applicable provisions of the Income Tax Act. ...

In effect, counsel's main point seemed to be that to take advantage of subsection 60.1(3) of the Act, the following words probably should be included in the written agreement ”... provides that an amount is to be considered... pursuant thereto... ... For the purposes of this section and section 60, where a decree, order or judgment of a competent tribunal or a written agreement made at any time in a taxation year provides that an amount paid before that time and in the year or the immediately preceding taxation year is to be considered as having been paid and received pursuant thereto, the following rules apply: (a) the amount shall be deemed to have been paid pursuant thereto; and (b) the person who made the payment shall be deemed to have been separated pursuant to a divorce, judicial separation or written separation agreement from his spouse or former spouse at the time the payment was made and throughout the remainder of the year. ...