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A-33-78
Jacques Beique (Plaintiff) (Appellant)
v.
The Queen (Defendant) (Respondent)
Court of Appeal, Pratte and Ryan JJ. and Lalande D.J.—Montreal, September 29, 1980.
Income tax — Tax liability — Trial Judge correct in determining that appellant's matrimonial regime governing the fiscal year in question was not that of community of property and that the agreement amending it from separation of prop erty to community of property did not affect the Crown with respect to that year — Income from property owned by appel lant's wife deemed to be that of appellant pursuant to s. 21(1) of the Income Tax Act (Lalande D.J. dissenting in part) — Quebec Civil Code, art. 1266b — Income Tax Act, R.S.C. 1952, c. 148, s. 21(1) as amended by S.C. 1955, c. 54, s. 3.
INCOME tax appeal. COUNSEL:
J. Beique for himself.
D. Thibodeau and R. Roy for respondent
(defendant).
SOLICITORS:
J. Beique, Montreal, for himself.
Deputy Attorney General of Canada for
respondent (defendant).
The following is the English version of the reasons for judgment delivered orally by
PRATTE J.: It is unnecessary for the purposes of this appeal to decide whether the decision of the Supreme Court of Canada in Sura v. M.N.R. [1962] S.C.R. 65 must still be followed despite the changes that have taken place in Quebec law since 1960. We are all of the opinion that the Trial Judge' correctly held that appellant was not mar ried under the regime of community of property in 1971; it appears to this Court that, at least with regard to the Crown, which is a third party, the agreement amending the matrimonial regime of appellant and his wife had no effect prior to registration of the notice required by article 1266b of the Civil Code.
' [1978] 2 F.C. 463.
The question remains whether, in assessing appellant, the Minister of National Revenue did not include in his income an amount of $770 which was, in fact, income of his wife. In this regard, the evidence disclosed that the income of $770 derived from property owned by appellant's wife. How ever, it further showed, in my view, that this income derived from property which the wife bought with money given to her by her husband. In these circumstances the income from this prop erty, though it is in fact that of the wife, is deemed to be that of appellant pursuant to section 21(1) of the Income Tax Act, R.S.C. 1952, c. 148 as amended by S.C. 1955, c. 54, s. 3.
For these reasons, I would dismiss the appeal with costs.
* * *
RYAN J. concurred.
* * *
The following is the English version of the reasons for judgment delivered orally by
LALANDE D.J. (dissenting in part): I concur with Pratte J. except as to the last point.
I conclude from the evidence that the $500 given by Mr. Beique to his wife in 1940, to buy a piece of land adjoining the family home, must be considered, pursuant to section 21(1) of the Income Tax Act, with the contribution of $1,000 which Mrs. Beique had made the previous year, the year they were married, to buy for her husband the piece of land on which this house was built.
In my view, the investment income of the wife derived from her own funds and appellant's notice of assessment should be amended to take this into account.
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