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During most of the year 1974, the Taxpayer was not a resident of Canada, having only returned to Canada from abroad in the Fall of 1974 shortly before agreeing to purchase the aforementioned home (considered by respondent to be irrelevant). 5. The Taxpayer is presently separated from the said Guy LaMarche and does not have access to his records for the relevant taxation year (considered by respondent to be irrelevant). ...

At issue is whether the profits generated from the sale of certain lots must be considered business income instead of capital gains for the 1973, 1974, 1975 and 1976 taxation years. ... Nor can the transferred lots be considered an inventory property and thus taxable, since neither the father nor the son were speculators. ...

In order to avoid calling Mr Thompson a second time, it was agreed between counsel that the testimony of Robert Thompson in his own appeal would be applicable to the Garneau appeal to whatever degree considered relevant by the Board. ... These non-interest-bearing promissory notes represented a “property” under the Income Tax Act and, because of subsection 15(2), they were considered by the Minister in the particular circumstances of this case as adequate proof and security for the debts. ...

They shall be quoted if necessary during the analysis. 4.02 Analysis 4.02.1 Appellants’ Argument The appellant, Lloyd Ness, said that: (a) he filed his taxation report in the manner it was explained to him on the phone by an employee of the Department of National Revenue and pursuant to the tax guide; (b) the profit of the other partners in some sales were considered as capital gain; and, (c) following or as a consequence of his heart attack he decided to invest in rental properties without intending to sell them. ... The manner in which the other partners have been assessed cannot be considered by the Board. ...

Regarding Item (3), it was the testimony of Mr Wise that he had considered the prospect of industrial or residential construction on the Greenberg property, and retaining the buildings thus constructed as investments for long-term revenue production. ... The judge may have considered the amounts of insurance premiums and realty taxes involved as advances by the appellant to Brown, but whatever the rationale of the learned judge, the result does not point to the conclusion asserted by the Minister. ...

In the assessments at issue, the Minister took the position that the two appellants were in partnership in the herbalist business, a business which was originally considered by the Minister to be that of King Lee the husband, alone. ... Counsel for the Minister at the completion of the presentation and evidence for the appellants, considered but decided against making at that time a motion for dismissal, presumably based on the view that the appellants had not discharged the onus of proof upon them. ...

Moreover, when the reimbursement for the actual expense is made by an employer for expenses incurred in the course of employment they can not be considered as personal or living expenses. Such reimbursement could not be considered as income. 9. Conclusion The appeal is allowed and the matter is referred back to the respondent for reassessment in accordance with the above reasons for judgment. ...

The respondent’s position on that point read: The Appellant was not required to pay his own expenses and was reimbursed for all travel and entertainment expenses considered necessary by his employer; The expenses claimed by the Appellant as a deduction from his employment income were over and above the expenses reimbursed by his employer. ... The reason given by the appellant for not claiming the disputed expenses against his employer was because he attempted to maintain his expense accounts claims against the employer at a reasonable level when compared with his sales contract production — simply that the company might have considered the claims excessive and unreasonable in the circumstances. ...

And the salient material evidentiary matters that should be considered in cases of this type have been considered and the applicable legal principles have been applied. ...

The relevant section of the Act to be considered is subsection 74(5) which reads as follows: (5) Where a husband and wife were partners in a business, the income of one spouse from the business for a taxation year may, in the discretion of the Minister, be deemed to belong to the other spouse. ... I have considered the following cases cited by counsel for the appellant: Sv S (1952), 5 WWR 523; Nemeth v Nemeth (1967), 64 DLR (2d) 377; Warm v Warm (1969), 70 WWR 207. ...