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According to the appellant, the assessment is not for the right year and if he was taxed in 1967 because the money was transferred under paragraph 11(1)(u) in that year, the Minister considered the plan to be in effect because the registration of the plan was still valid at that time. ... Because of the decision in Goldstein and Oddy Limited v MNR rendered this day, the deferred profit sharing plan has been ruled as nonexistent since it is not in conformity with the provisions of subsection 79C(7) of the Act, and it follows that the amount received by the two main shareholders of the appellant company can in no way whatsoever be considered as a legal transfer to a registered retirement savings plan, except for the amount of $2,500 allowed by the law. As to the taxation year, in no way whatsoever could the 1966 taxation year be considered as the proper one since the appellant did not receive anything in that year. ...

Minister of National Revenue, [1975] C.T.C. 2103, 75 D.T.C. 100 The Assistant Chairman: 1 This is the appeal of Crusado Estates Limited from an income tax assessment in respect of the 1971 taxation year. 2 By notice of reassessment dated October 6, 1972, the Minister added to the appellant's 1971 income an amount of $153,182.88 (subject to a reserve under subsection 85(6) of the Income Tax Act) considered by the Minister to be profit realized by the appellant from the sale of land, but considered by the appellant to be a non-taxable capital gain. ... The offer was duly considered by the appellant company's shareholders. ... Whether or not the land has been serviced and whether or not houses were built on the land and offered for sale to the general public, does not change the nature of the appellant's business. 17 Raw land, serviced land, or land on which houses were built for resale can, in my view, be compared with a commodity for sale in a supermarket, and are part of the appellant's stock-in-trade; their disposition can only give rise to income as part of the appellant's day-to-day business. 18 The rhetorical question asked by counsel for the respondent is, in my view pertinent: ‘How indeed can the profit on the disposition of land by a developer whose business, geared on a short-term basis, is the acquisition, development and sale of land, be considered as a capital gain when the land is an important part of his stock-in-trade and an integral part of the operation of his business?” ...

Where an individual was resident in Canada during part of a taxation year, and during some other part of the year was not resident in Canada, was not employed in Canada and was not carrying on business in Canada, for the purpose of this Part his taxable income for the taxation year is the aggregate of (a) his income for the period or periods in the year during which he was resident in Canada, was employed in Canada or was carrying on business in Canada, computed as though such period or periods were the whole taxation year and as though any disposition of property deemed by subsection 48(1) to have been made by virtue of the taxpayer's having ceased to be resident in Canada were made in such period or periods, and (b) the amount that would be his taxable income earned in Canada for the year if at no time in the year he had been resident in Canada, computed as though the portion of the year that is not in the period or periods referred to in paragraph (a) were the whole taxation year, minus the aggregate of such of the deductions from income permitted for the purpose of computing taxable income as may reasonably be considered wholly applicable to the period or periods referred to in paragraph (a) and of such part of any other of the said deductions as may reasonably be considered applicable to such period or periods. 2 The appellant, then aged 26, was born in Canada and, except for the above-mentioned period, had resided in Canada continuously. ... In the application of the preceding paragraph, it shall not be considered as the exercise of personal activity in one of the States if an employee of an establishment situated in the other State carries out in the territory of the first State a temporary mission of short duration in the course of which his remuneration continues to be a charge on and paid by the said establishment. 8 As an alternative, the respondent further pleaded, in paragraph 7 of his reply, the provisions of section 114 of the Income Tax Act but, at the hearing of this appeal, on learning that the appellant had in fact filed his 1972 return pursuant thereto, learned counsel for the respondent withdrew that portion of the reply. 9 From a review of the jurisprudence on the question of residency, it is obvious that the matter has given the courts considerable difficulty, and the ruling in each case must be viewed in the light of the particular set of facts that governed the situation. 10 In the case of Ernest G Stickel v Minister of National Revenue, [1973] F.C. 259, [1973] C.T.C. 202, 73 D.T.C. 5178, the respondent argued that the appellant was no longer a resident of the United States of America. ... R. 621, as follows: To determine whether a person has ceased to be resident of any particular place, the duration of his previous residence, his connections with that community and his interest in it are circumstances to be considered. 13 As to the application of Article 10 of the Canada-France Income Tax Convention, I note that Article 2, paragraph VI, defines the term “permanent establishment” in a manner which, in my humble opinion, places a limitation on Article 10, if in fact Article 10 applies in the instant case. 14 In answer to a direct question on cross-examination, the appellant stated that he paid no income tax in France. ...

In 1966 and subsequently the firm of Clarkson, Gordon & Co became the auditors of the appellant company and Mr John Green of that firm was an important witness at the hearing of the appeal. 11 From Mr Green's testimony and from supporting documents the amount of $52,107.30 had theretofore been carried in the appellant's books as an asset but was considered by the new auditors to be uncollectable. ... I do not believe that a sale even at cost can be legally considered as a loan. 13 The amount of $52,107.30 was not disputed by counsel for the respondent but he claimed that the amount was on capital account and could not be deductible as a business loss. 14 There is no doubt in my mind that Greensteel Fabricators obtained its basic metal from Greensteel Industries for the production of its metal ornaments and that a bona fide trading account had over the years arisen between the two companies (Exhibits A-7 to A-12). ... In answer to questions during cross-examination the witness did not say and would not say whether in this appeal the debt became bad in 1963 or in 1965 but stayed solidly on the general principle that he had enunciated. 21 In this appeal there are two facts which I believe should be considered in deciding exactly when the appellant company's debt became bad. ...

Having regard to the decision in Her Majesty the Queen v Robert B Atkins, [1976] CTC 497; 76 DTC 6258, the moneys paid to the appellant cannot be regarded as salary or wages, and must be considered as capital in nature. ...

Although an interim statement dated January 31, 1972 was available Mr Kergan considered and used only the statement for the full 1972 fiscal year as being a more accurate reflection of the company’s operations. ... Mr Vanderkooi considered also that the only possible goodwill the company had was Mr Brunelle’s hard work and driving force, which was not of a commercial nature because it would disappear whenever Mr Brunelle withdrew from the company. ... All these factors, in my view, would have to be considered by a prospective buyer over and above any mathematical valuation that might be made of the shares based on the past earnings of the company. ...

The point to be determined in this instance is whether parcels of land sold by the appellant in the taxation years 1965 and 1966 constitute trading transactions in which the revenue derived therefrom must be considered as profit from a business and taxable, or whether the profits derived from the sale of these lands can be considered as capital gains and non-taxable. ... Under the circumstances the appellant considered it good business to sell the land and keep a major customer from leaving Windsor. ... There is evidence to support that, having utilized the front portion of the EC Row Avenue property, the appellant considered the surplus land as land-locked and of relatively small value. ...

Counsel for the respondent pointed out that for the years prior to 1977 the appellant had in his returns considered his personal residence as occupying 1/9 of the total area of the building and in 1976 his personal use of the building was considered as being 1 / of its area (Exhibits R-2, R-3 and R-4). ... In the appeal now being considered, the building is a multiple family dwelling and the appellant is claiming a principal residence exemption on all the subjacent land. ...

At the end of the evidence presented by the appellant, counsel for the Minister considered the situation and took the course of moving for dismissal of the appeal on the basis the onus of proof had not been discharged by the appellant. ... The main evidence and, in fact, the only evidence which could be considered to have any relevance to that $6,000 figure was that a sale of adjacent property had taken place in 1971 from Goodwin the appellant at an amount of $6,000 per acre. ... Counsel also noted that this could not be considered in any way as comparable value for the subject property in light of the fact that the purchaser (who had been a witness for the appellant at the hearing) required the property he did purchase in 1971 from Goodwin, for the extension of the shopping plaza. ...

On the other hand, while claiming that the income should properly be taxed in Katherine Maloney’s hands, the 1979 tax return filed on behalf of the infant (considered in Victor Maloney’s 1979 tax return to be a wholly dependent child) shows nil income. ... Pursuant to subsection 104(18) income is considered to be payable for purposes of subsections 104(6) and (13) where (a) the income is held in trust for an infant or minor whose right thereto has vested, and (b) the only reason that it was not payable was because the beneficiary was an infant or minor. ... Where the income of a trust for a taxation year or any part thereof was not payable in the year but was held in trust for an infant or minor whose right thereto had vested and the only reason that it was not payable in the year was that the beneficiary was an infant or minor, it shall, for the purpose of subsections (6) and (13), be considered to have been payable. ...