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Heckendorn's facts as he has set them out in his Statement of Claim as if proven, except where too far-fetched to be credible and here I do not accept, as if proven, the allegation that the Income Tax Act does not exist. [8]                I have considered the Crown's affidavit material only to the extent that it goes to jurisdiction, or deals with matters said to be frivolous or an abuse of process of the Court, the latter being permissible in that the Defence, in paragraph 15, reserves to the Defendants the ability to argue that the claim is without merit, is an abuse of process and is frivolous. ... Carey Canada Inc. [1990] 2 S.C.R. 959 at 980. [10]            As I have already observed it is established law that the facts alleged in the Statement of Claim are, unless so far-fetched as to be unbelievable, for the purposes of the motion considered as if proven. ...

Analysis [8]      Subsection 56(4) of the Act states: Where a taxpayer has, at any time before the end of a taxation year, transferred or assigned to a person with whom the taxpayer was not dealing at arm's length the right to an amount (other than any portion of a retirement pension assigned by the taxpayer under section 65.1 of the Canada Pension Plan or a comparable provision of a provincial pension plan as defined in section 3 of that Act) that would, if the right had not been so transferred or assigned, be included in computing the taxpayer's income for the taxation year, the part of the amount that relates to the period in the year throughout which the taxpayer is resident in Canada shall be included in computing the taxpayer's income for the year unless the income is from property and the taxpayer has also transferred or assigned the property. [9]      The transfer of the right to trailer fees has never been considered under subsection 56(4). ... Hicks considered would continue to be personally accountable for providing the services after the incorporation. ...

Dale (supra), considered that this finding was inconclusive, and that there was fallacy in the use of the word ‘‘enduring’’, and stated that “What Lord Cave is quite clearly speaking of is a benefit which endures, in the way that fixed capital endures, not a benefit which endures in the sense that for a good number of years it relieves you of a revenue payment.’’ ... And, therefore, I am unable to find that by ceasing to use the main valve testing tool in 1958 the appellant could be considered to be pro tanto going out of any part of its business. ...

., [1976] C.T.C. 358, 76 D.T.C. 6196 (F.C.T.D.) wherein it was held that all factors had to be considered and the necessity of weighing each in relation to the others. ... Also, he wrote that whether an isolated transaction can be considered an adventure in the nature of trade cannot be determined solely upon the basis of intention at time of purchase. ...

He was asked specifically whether the plaintiff would have considered the various contracts to be completed prior to such approval being given, and he repeatedly answered in the negative. ... And would Wil Mechanical have considered this work completed prior to the engineer's approval? ...

Counsel also stressed the point that during most of the time the Cameron Farm was actually used as an investment for the purpose of yielding rental income to the partnership from the pasture and the farmhouse, which was another relevant factor to be considered according to the authority of M.N.R. v. ... Justice Urie had to determine whether a change of intention on the part of the most active member of a consortium could be considered in the determination of the taxability of his profits from the sale of a residential and commercial property, or whether it was the intention of the consortium as a whole which prevailed. ...

Those losses were considered limited partnership losses within the meaning of subsection 96(2.1) of the Act. ...   [39]     Counsel noted that the losses disallowed under subsection 96(2.2) of the Act were considered limited partnership losses within the meaning of subsection 96(2.1) of the Act and that, under paragraph 111(1)(e) of the Act, they could be carried forward against the partnership's income attributed to the limited partners in 1998.   ...

I have also considered Reeves' assertions that neither the appellant nor its partners ever contemplated the possibility of resale at the time of purchase; his statement that ” It didn't cross our minds to resell it at that point" and his expressed philosophy "When I buy a property, I never think of reselling it as far as trying to make a profit. ... Other evidence to be considered is the appellant's awareness of the state of the real estate market in Weslaco. ...

LJP relies upon the provisions of subsection 152(4.3) of the Income Tax Act in support of its application. [12]            Subsection 152(4.3) provides that: 152 (4.3) Notwithstanding subsections 152(4), 152(4.1) and 152(5), where the result of an assessment or a decision on an appeal is to change a particular balance of a taxpayer for a particular taxation year, the Minister may, or where the taxpayer so requests in writing, shall, before the later of the expiration of the normal reassessment period in respect of a subsequent taxation year and the end of the day that is one year after the day on which all rights of objection and appeal expire or are determined in respect of the particular year, reassess the tax, interest or penalties payable, or redetermine an amount deemed to have been paid or to have been an overpayment, under this Part by the taxpayer in respect of the subsequent taxation year, but only to the extent that the reassessment or redetermination can reasonably be considered to relate to the change in the particular balance of the taxpayer for the particular year. 152 (4.3) Malgré les paragraphes (4), (4.1) et (5), lorsqu'une cotisation ou une décision d'appel a pour effet de modifier un solde donné applicable B un contribuable pour une année d'imposition donnée, le ministre peut ou, si le contribuable en fait la demande par écrit, doit, avant le dernier en date du jour d'expiration de la période normale de nouvelle cotisation pour une année d'imposition subséquente et de la fin du jour qui tombe un an apr P s l'extinction ou la détermination de tous les droits d'opposition ou d'appel relatifs B l'année donnée, établir une nouvelle cotisation B l'égard de l'impôt, des intér L ts ou des pénalités payables, ou déterminer de nouveau un montant réputé avoir été payé, ou payé en trop, en vertu de la présente partie par le contribuable pour l'année subséquente, mais seulement dans la mesure o j il est raisonnable de considérer que la nouvelle cotisation ou la détermination se rapporte B la modification du solde donné applicable au contribuable pour l'année donnée. [13]            Also relevant to LJP's application is subsection 152(4.4) of the Income Tax Act, which defines what is meant by the term "balance" as it is used in subsection 152(4.3): (4.4) For the purpose of subsection 152(4.3), a "balance" of a taxpayer for a taxation year is the income, taxable income, taxable income earned in Canada or any loss of the taxpayer for the year, or the tax or other amount payable by, any amount refundable to, or any amount deemed to have been paid or to have been an overpayment by, the taxpayer for the year. (4.4) Pour l'application du paragraphe (4.3), le solde applicable B un contribuable pour une année d'imposition correspond au revenu, au revenu imposable, au revenu imposable gagné au Canada ou B une perte du contribuable pour l'année, B l'impôt ou autre montant payable par lui pour l'année, B un montant qui lui est remboursable pour l'année ou B un montant réputé avoir été payé, ou payé en trop, par lui pour l'année. [14]            LJP relies upon its success in the Tax Court of Canada with respect to the non-association findings for the 1995, 1996 and 1997 taxation years, submitting that its 1998 and 1999 tax years should have been reassessed on the same basis. [15]            In its Notice of Application, LJP asserted that the Minister incorrectly refused to exercise his jurisdiction, erred in law and otherwise acted in a manner contrary to law by refusing to conduct a reassessment in accordance with LJP's written request. [16]            The Minister then brought a motion pursuant to Rule 221 of the Federal Courts Rules seeking an order striking out LJP's Notice of Application. ... While the provision does state that the Minister shall reassess, upon receipt of a written request from a taxpayer, it is clear that the duty to reassess is only engaged when the result of a decision on an appeal is to change a "particular balance" of a taxpayer for a previous year, and then only to the extent that the reassessment can reasonably be considered to relate to the change in the particular balance for the succeeding year or years. ...

This garage was considered to be sufficient for the purposes of the main building and the future addition. ... Since this is a capital expenditure made to produce income, the question that remains is whether it should be considered an eligible capital expenditure under paragraph 14(5)(b) or a part of the capital cost of the building addition under paragraph 20(1)(a). ...