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The position here is, I think, entirely analogous to that considered by the Exchequer Court in Gordon Kenneth Daley v MNR, 1 Tax ABC 364; 50 DTC 877. ...

Summary In the circumstances of this case, the amount in question should not be considered as a shareholder benefit conferred upon Emery in order that he be taxed accordingly. ...

Also, the Minister’s argument continues that since the above 18,338 sq ft is not “contiguous” to the 31,206 sq ft immediately surrounding the house (since it was allegedly separated by the right of way), it cannot possibly be considered as qualifying as “immediately contiguous land”. ... Consequently, when said vendors freely agreed to sell land, which is located immediatley south of Old Barrhaven, at acreage prices of $3,750.00 and $3,900.00 per acre some one and a half months after V-Day, and the purchaser exercised his option to buy said land eight months later, these acreage prices must be considered to represent the upper limits of Barrhaven area values as of V-Day (December 31, 1971). ... The Board has no information that such an eventuality was ever considered, and so that becomes irrelevant to this decision. ...

The amount so accrued for the corporation’s year ended March 31, 1972 was $60,000, of which $18,464.05 had been withdrawn by the shareholders (and considered as wages) by June 29, leaving a balance of $41,535.95. ... In that case, it was considered that the former shareholder LePain was a creditor of the company for the declared commissions at the time of the sale of the shares and that he had conferred this benefit on the purchaser of the shares, and consequently LePain was taxable under subsection 56(2). ... The only contingency, if it is properly termed a contingency in the present appeals was that the directors might, if they considered business conditions demanded, reduce or even cancel the fund so set up. ...

This is something that must be considered, and has been considered, and that has been referred to again in the judgment of Mr Justice Walsh in the LDG Products Inc case, where he quotes from pages 267-8 [5174] of his judgment in Concorde Automobiles Ltée v MNR, [1971] CTC 246; 71 DTC 5161, as follows:. I.. 1 therefore believe it is necessary in any given case to attempt to determine from the facts of that case whether the company was merely incidentally gaining a tax advantage as a result of setting up a bona fide pension plan, or whether it would not have considered setting up this pension plan but for the tax advantage to be gained as a result thereof, and in the latter event, Section 137(1) would be applied. ... In dealing with the question of what transpired subsequent to the year in question, Mr Justice Walsh points out, at page 287 [5232] of his reasons in the LDG Products case: Appellant argued that the contributions called for were duly made in 1965 and 1966 and that the fact that they were later suspended cannot have a retroactive effect so as to indicate that the plan in those years should not be considered as a bona fide pension plan. ...

Thomas Collins considered the Davis farm good value for the purchase price in that it had a potential compared to Lavington which was suburbanized. ... The appellant Thomas J Collins says that at the time of the purchase of the Davis range land, he considered it good and gave as his reason for buying this land, so far away from his Lavington Stock Farm, that he wanted a large farm unit. ... Although he was not dealing in what is normally considered to be a subject of commerce such as commodities, the transactions from its very inception was purely speculative in character and was, in our opinion, as a matter of law, a venture in the nature of trade. ...

(Trans 1, pp 103, 104 and 105). 3.12 Mr Chouinard in his appraisal then considered various uses for three areas of land: lots along the river; the area in between these lots and those along the highway; and lots along the highway. 3.13 The comparable transactions chosen by Mr Chouinard are small lots generally located near the subject land. 3.14 Mr Ouellette (for the respondent) considered, however, that the subject land, though already subdivided, cannot be considered as land to which the Subdivision method should apply. ...

Although the value of the appellant’s business is not in issue, counsel for the respondent, in support of his V-Day value of the subject, also called evidence with respect to the overall worth of the appellant’s business to be referred to and used only as a test or guideline in determining whether extra value arising from other sources such as the existence of goodwill or indeed the presence of bacteria could reasonably be considered in establishing the V-Oay value of the building. ... Because of the high content of intangibles, personal appreciation of facts and a variety of considered opinions that come into play in establishing V-Day values, I have often asked myself whether a more accurate and satisfactory determination of fair market value as at December 31, 1971 could not in most cases be arrived at by greater effort of the parties in reaching a reasonable compromise on their own. In arriving at my decision, I have considered and accepted Dr Irvine’s evidence that a cheese plant such as the appellant’s is, for many reasons, different from other manufacturing plants and its value — which is more than bricks and mortar — rests in its inherent capacity to produce by means of its indigenous bacteria, special varieties of cheese. ...

For some strange reason that was not considered to be relevant in the determination of a comparable of a particular parcel. ... It was brought out more than once that these were factors considered in the use of the development approach to the appraisal of a piece of property, which Mr Braa stated more than once he did not feel was an appropriate method to appraise this particular piece of property. ... Properties “D” and “E” were not considered sufficiently reliable by Mr Zezulka for him to reach any definite conclusion based on them alone, and he was right, and they were not even listed by Mr Bechthold or Mr Braa — and again correctly (see above chart). ...

For the respondent: — The appellant never considered or included the alleged value of the leasehold interest in the allocation of the acquisition price. — The appellant was subsequently unable to establish that any part of the sale price was attributable to the value of the leasehold interest. — The leasehold interest was correctly valuated at nil, according to the well-established valuation principles. — The amount of $11,875 was correctly added to the appellant’s income as the profit derived from the sale of goodwill, pursuant and in accordance with subsection 14(1) of the new Income Tax Act, and subsection 21(1) of the Income Tax Application Rules. ... Now, these were the assumptions of the Minister that as far as we are concerned, the leasehold interest, the value of this leasehold interest, was considered to be nil and that the goodwill, based on the allocation that the appellant had himself established, was to be, or the value after having subtracted the equipment of the value of $7,500, the goodwill was to get the remaining value. ... First of all, he hasn’t even established what amount should be considered to be apportioned to the leasehold interest and secondly, he hasn’t established that such an amount should be rightly apportioned to the leasehold interest which could only be done through an expert witness.... it might be viewed at first glance as a particular situation since the appellant bought this cafeteria for $75,000 and for different reasons had to sell it for $55,000. ...