Judgment of the Court
J.:-This is an appeal from a judgment' of Cattanach J. allowing in part on consent an appeal by the appellant from the assessments made for his 1957, 1958, 1959 and 1960 taxation years and subject to the adjustments directed pursuant to such consent dismissing the appeal and confirming the assessments.
At the conclusion of the argument of counsel for the appellant the Court was unanimously in agreement with the conclusions and reasons of the learned trial judge and counsel for the respondent were called upon in regard to only one point which was not dealt with expressly by Cattanach J. but was fully argued in this Court.
That point, briefly stated, is as follows. The appellant submits that unless the Minister determines under s. 13 (2) of the Income Tax Act that a taxpayer's chief source of income for a taxation year is neither farming nor a combination of farming and some other source of income the provisions of subs. (1) of that section do not come into operation, and that, since the Minister did not make a determination under subs. (2), either the appeal should be allowed in toto or the matter should be referred back to the Minister to make such a determination.
Section 13, as applicable to the taxation years 1958, 1959 and 1960 reads as follows:
(1) Where a taxpayer's chief source of income for a taxation year is MINISTER neither farming nor a combination of farming and some other source of income, his income for the year shall be deemed to be not less than his income from all sources other than farming minus the lesser of
(a) his farming loss for the year, or
Cartwright J. (b) $2,500 plus the lesser of
(i) one-half of the amount by which his farming loss for the year exceeds $2,500, or
(ii) $2,500.
(2) For the purpose of this section, the Minister may determine that a taxpayer's chief source of income for a taxation year is neither farming nor a combination of farming and some other source of income.
(3) For the purposes of this section, 'farming loss' means a loss from farming computed by applying the provisions of this Act respecting the computation of income from a business mutatis mutandis.
As applicable to the taxation year 1957 there were differences in the wording of subs. (1) which are not material to the point under discussion.
Both at the trial and before us counsel for the respondent conceded that in the case at bar the Minister did not make a determination under subs. (2).
In these circumstances we are all of opinion that the Exchequer Court had jurisdiction to determine the question whether the appellant's chief source of income for the taxation years with which the appeal is concerned was neither farming nor a combination of farming and some other source of income.
On the evidence given at the trial and the admissions made by counsel the only finding that could properly be made is that the appellant's chief source of income during the taxation years in question was neither farming nor a combination of farming and some other source of income and it was on that basis that the learned trial judge proceeded.
For the reasons given by Cattanach J. and those stated above I would dismiss the appeal with costs.
Appeal dismissed with costs. Solicitor for the appellant: F. E. Labrie, Toronto. Solicitor for the respondent: E. S. MacLatchy, Ottawa. S.C.R.
[19661
Statutes and regulations cited
-
Unresolved citations
- s. 13
- subs. (1)
- subs. (2)