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A-17-74
Val Royal Corporation (Appellant) (Defendant)
v.
The Queen (Respondent) (Plaintiff)
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Montreal, March 5, 1976.
Income tax—Rental insurance agreement—Option to pur chase after fixed sum paid—Overpayment— Reacquisition of property rights of appellant by payment back to respondent— Whether deductible as business expense or capital outlay— Income Tax Act, S.C. 1952, c. 148, s. 12(1 )(a).
Rental insurance agreements between Central Mortgage and Housing Corporation and appellant, as owner of apartment buildings, gave CMHC an option to purchase the properties, after a fixed amount had been paid on account of rental insurance. When CMHC gave notice of exercising its option, the amount paid by it was in excess of the limit agreed upon. The parties agreed to compromise the excess at the sum of $105,000, and that on repayment of this amount by appellant to CMHC, the latter would not exercise its right to obtain final title.
Repayment of this amount by appellant to the Corporation was assessed by the Minister as not deductible. The Tax Review Board held that it was deductible, and was reversed by the Trial Division. Regarding the first test of deductibility, the Trial Division held that the expense was for the purpose of producing income from the properties, within section 12(1)(a). But, as to the second test, as to whether the payment was an expense relating to capital or income, the Trial Division held that it was essentially a lump sum payment for the reacquiring by appellant of lost property rights and therefore a capital expenditure. Appellant appealed.
Held, the appeal is dismissed. Assessments should be referred back to respondent for re-assessment after considering whether capital cost allowance should be made in respect of the pay ment of $105,000.
APPEAL. COUNSEL:
P. F. Vineberg, Q.C., for appellant.
T. B. Smith, Q.C., and H. Richard for
respondent.
SOLICITORS:
Phillips & Vineberg, Montreal, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
JACKETT C.J.: This is an appeal from a decision of the Trial Division' allowing an appeal by the respondent from a decision of the Tax Review Board holding that the appellant was entitled to make certain deductions in computing its income for the 1967 and 1968 taxation years for the purposes of Part I of the Income Tax Act. The judgment of the Trial Division declared "the $105,000 expenditure" made by the appellant and two other taxpayers "to be a capital disbursement and not an income disbursement".
The question involved is set out in the reasons for judgment of the learned Trial Judge in a manner that we adopt. We are, furthermore, in agreement with the reasoning whereby he reached the conclusion that he did; and we are therefore of the view that, subject to what I am about to say, the appeal should be dismissed with costs.
Counsel for the respondent is in agreement with counsel for the appellant that the assessments of the appellant that are the subject matter of this appeal should be referred back to the respondent for re-assessment after considering whether capital cost allowance should be made in respect of the aforesaid payment of $105,000. Subject to such a direction, the appeal will be dismissed with costs.
' [1973] F.C. 1346.
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