Judgments

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T-2792-71
Chester G. Harris (Appellant)
v.
Minister of National Revenue (Respondent)
Trial Division, Heald J.—Calgary, November 6; Ottawa, November 14, 1974.
Income tax—Losses on farm—Purchase for clearance and cultivation—Part-time operation—"Business"—"Reasonable expectation of profit"—Income Tax Act, R.S.C. 1952, c. 148 as am., ss. 11(16), 12(1)(a), (b), (h), 139(1)(e) and (ae)— Public Lands Act, R.S.A. 1955, c. 259, as am.
The appellant, who was of farm background and had subsequently been employed in city jobs related to agricul ture, made an agreement in 1964 to purchase from the Alberta Government 320 acres of uncleared land for $2,440. He fulfilled the requirements for breaking and seeding addi tional acreage each year and built a home to comply with the requirement that he commence living on the property after the seventh year of the agreement. From 1965, when he entered into possession, to 1967, he continued to work at his city employment but spent most of his weekends and his summer holidays clearing the land. In 1966 and 1967 he had no income from the farm but charged against his income from city employment his expenses from the farming opera tion. In the years 1968-1970 he showed no income or expenses front farming. In 1971 he moved his home to the farm and commuted to his city job. The farm continued to show a loss from 1971 to 1973. This appeal was from the disallowance of the expenses claimed for the taxation years 1966 ($1,000) and 1967 ($1,600).
Held, allowing the appeal, the evidence established that the appellant was engaged in the business of farming, within the definition of "business" in section 139(1)(e) of the Income Tax Act and the provision for deduction of expenses "from a business that is farming" in section 11(16). The appellant had not purchased the farm as a hobby or holiday retreat, nor was it a sham or device. It was a farming undertaking which, from the first, occupied a great deal of appellant's time, attention and labour, expended for the purpose of profit The operation would probably commence to show a profit next year or the year after. There was a "reasonable expectation of profit" from the business, within the definition off "personal or living expenses" in section 139(lxae).
The Queen v. Matthews [1974] C.T.C. 230, applied. Holley v. M.N.R. 73 DTC 5417, distinguished.
INCOME tax appeal. COUNSEL:
L. R. Duncan for appellant.
C. D. MacKinnon for respondent. SOLICITORS:
Fenerty, McGillivray, Robertson, Brennan, Prowse, Fraser, Bell & Hatch, Calgary, for appellant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment delivered in English by
HEALD J.: This is an appeal in respect of income tax assessments for the taxation years 1966 and 1967 wherein the respondent disal lowed a farm loss of the appellant in the sum of $1,034.59 in the taxation year 1966 and in the sum of $1,671.32 in the taxation year 1967.
The appellant is 37 years of age. He was born on a farm in Alberta where he lived until he was about 13 years old. At that age, he left the family farm to do farm work on other farms as a hired hand. He continued in this employment until he was about 17. For the next two years, he was apprenticed as a butcher with an Alberta grocery firm, serving at various locations in Alberta. He then spent some 2i years in the Royal Canadian Mounted Police. In August of 1960, he returned to the grocery firm as a meat cutter. He continued working for either the gro cery firm or a meat packing firm at Red Deer, Alberta until about 1966 when he accepted employment with the Health of Animals Branch, Meat Inspection Branch, Federal Department of Agriculture, stationed at Red Deer. This employment with the Federal Gov ernment at Red Deer has continued until the present time and has been, at all times a full- time job.
The appellant said in evidence that he had been involved in agriculture practically all of his life and that he had always wanted to go farm ing on his own, and that the only obstacle stand ing in his way was lack of financial resources, since his only source of income was his rather modest wages from his employment.
He said that about the only way he could get started in farming at a low cost was to attempt to acquire land through a homestead sale from the Government of the Province of Alberta. He was finally successful in acquiring a half section of land (320 acres) by this method on December 21, 1964 when he entered into a homestead sale agreement with the Alberta Government cover ing said half section which was situated some 64 miles north west of Red Deer. Pursuant to the agreement, appellant obtained possession of the property on January 1, 1965. At time of pur chase, subject land was solid timber and bush, consisting of some light scrub and some heavy timber suitable for lumber. There was no road, no fences and no buildings on the property at time of purchase. The appellant testified that, in his view, subject property was capable of being farmed economically as a cow-calf operation using range cattle inasmuch as he believed it would raise a good hay crop and would be suitable for pasture after being cleared and cul tivated. He said that when he puchased this land, it was his intention to leave his full-time employment within 2 years to make farming his full-time vocation. In 1965, appellant cleared some 2 acres on which he built a small shack suitable for him to live in temporarily when he was at the property. In 1965, he commuted most weekends from Red Deer to the property. He also spent his two week holiday in 1965 working at the farm. In 1966 and 1967, he also spent most weekends and his summer holiday on the farm. During the winter months of those years, he hired a third party to clear the bush from some 85 acres of said land and do some of the breaking thereon. During 1966 and 1967, he himself was also engaged in the clearing and breaking of said 85 acre portion. During this period he also purchased a second-hand tractor and the other implements necessary for the breaking and eventual seeding of said parcel. He also erected some barbed-wire fencing on a portion of subject land. He also erected a gra nary on the property in 1966 and 1967. Thus, the position of the farm at the end of 1967 was that there was 85 acres cleared and ready to be seeded to grass in the spring of 1968.
Appellant received no income from said prop erty during the taxation years 1966 and 1967. However, he did seek to charge the expenses incurred by him in respect of said properties against his income from employment. In 1966, appellant sought to deduct from income the sum of $1,034.59, which may be broken down as follows:
Gasoline & oil $ 55.11
Repairs 121.23
Clearing or levelling land 800.00
Capital cost allowance— (depreciation on a tractor and a disc for a portion
of the year) 58.25
Total $1,034.59
The corresponding deduction claimed for 1967 was $1,671.32 which is broken down as follows:
Building repairs $ 204.80
Fence repairs 25.95
Gasoline & oil 86.49
Repairs, licence, insurance 68.38
Feed and straw 8.20
Clearing or levelling land 1,200.00
Capital cost allowance— (depreciation on tractor and disc for the
full year) 77.50
Total $1,67132
The sole issue in the appeal is the propriety of such deductions.
In 1968, appellant sowed 85 acres to barley, oats and tame grass. 1968 was the only year he seeded any grain or grass seed. In the fall of 1968, he harvested about 700 bushels of barley and 200 bushels of oats. After 1968, because of the success of the seeding to tame grass, said 85 acres were suitable for pasture. Also in 1968 the appellant purchased some hogs on a share basis with a friend, and the grain produced from the land in 1968 was used to feed the hogs. Also in 1968, the appellant cut some 27,000 board feet of lumber and dry-piled it on a clearing in the bush. However, unfortunately for the appellant,
this lumber was all destroyed by a fire on said property in May of 1968. Since that time, the appellant has cut other lumber from subject property and has sold it to others (to the extent of $570 in 1972 and $675 in 1973).
After 1968, said 85 acres were used as a pasture for cattle by a neighbour of the appel lant's. In the taxation years 1968, 1969 and 1970, the appellant claimed no farming expenses nor did he show any farming income. The appellant said that he did not continue with his hog venture after 1968 because the market price of hogs was low and the market price of feed grain was high and thus, in his view, a hog operation was not economically viable. He said that he did not engage in a cattle operation during those years because of lack of financial resources. Finally he was able, in 1971, to make a calf-sharing agreement with a friend. By this time, an additional 25 acres had been cleared. Under this arrangement, he has been able to acquire ownership over the years since 1971 of 13 cattle and one bull. He was also able to sell 6 calves this fall. In 1971, he and his family moved to the farm from Red Deer and have resided there on a permanent basis ever since. Exhibit 10 filed at the trial summarizes his farming operations during the last 3 years as follows:
Year Expenses Income Loss
1971 1,144.20 56.12 1,088.08
1972 2,761.78 1,143.50 1,618.28
1973 3,366.08 1,470.60 1,895.48
Appellant said that he is presently in the process of clearing another 100 acres; that he antici pates farming on a full-time basis by approxi mately 1976 and that he foresees a profit from the farm and that his goal is to develop a herd of approximately 100 cows, which, in his view, would be sufficient to support him, his wife and their two children. He agrees that to support 100 cows, he will need more pasture land. How ever, he said there was other Crown land near subject land which he was going to try to obtain on a grazing lease basis. He said that the gross revenues from farming had been increasing, not
dramatically, but increasing nevertheless, and on this basis, he was sure it would soon be a profitable operation. He also estimated that for the taxation year 1974, his farm receipts would just about equal his farm expenses. Since moving to the farm in 1971, appellant has retained his full-time job in Red Deer and has commuted back and forth from the farm to Red Deer.
It is the appellant's submission that, at all material times, he was engaged in the business of farming from which he anticipated a profit, but in respect of which he has thus far incurred a loss which is deductible under the Income Tax Act as being expenses incurred for the purpose of gaining or producing income and as such, deductible under section 12(1)(a) of the Act or expenses incurred in the business of farming or clearing land deductible under the provisions of section 11(16) of the Act.
Section 11(16) reads as follows:
11. (16) Notwithstanding paragraphs (a), and (b) of sub section (1) of section 12, there may be deducted in comput ing a taxpayer's income for a taxation year from a business that is farming, amounts paid by him in the year for clearing land, levelling land or laying tile drainage for the purpose of carrying on the farming business.
The respondent submits, on the other hand, that section 11(16) (supra) has no application to the facts of this case because, in his submission, the appellant was not engaged "in the business of farming or clearing land" as that term is used in said section 11(16) (supra).
The respondent makes a second submission to the effect that deduction of subject losses are prohibited by sections 12(1)(a), (b) and (h) of the Act, said subsection (h) being modified by section 139(1)(ae)(i) of the Act. These sections read as follows:
12. (1) In computing income, no deduction shall be made in respect of
(a) an outlay or expense except to the extent that it was made or incurred by the taxpayer for the purpose of gaining or producing income from property or a business of the taxpayer,
(b) an outlay, loss or replacement of capital, a payment on account of capital or an allowance in respect of depreciation, obsolescence or depletion except as express ly permitted by this Part,
(h) personal or living expenses of the taxpayer except travelling expenses (including the entire amount expended for meals and lodging) incurred by the taxpayer while away from home in the course of carrying on his business,
139. (1) In this Act,
(ae) "personal or living expenses" include
(i) the expenses of properties maintained by any person for the use or benefit of the taxpayer or any person connected with the taxpayer by blood relationship, mar riage or adoption, and not maintained in connection with a business carried on for profit or with a reason able expectation of profit,
Accordingly the basis of this second submis sion is that even if I conclude that this appellant was in "the business of farming", subject ex penditures are not deductible because they were not "in connection with a business carried on for profit or with a reasonable expectation of profit" (underlining mine).
Dealing initially with the question as to whether this appellant was engaged in the "busi- ness of farming", on the evidence adduced, I am satisfied that the appellant was engaged in the "business of farming". Appellant's entire background is one of farming. He said that he had always wanted to go into farming on his own, but that he had been prevented from doing so because of his lack of funds. I found him to be a credible witness and I accept his evidence in this regard. The opportunity to purchase the homestead land from the Alberta Government gave him the opportunity he had been waiting for—the opportunity to buy land at a low price (the entire half section for $2,440).
This is not a case where the farm was pur chased as a hobby or as a "holiday retreat" nor was appellant's farming operation a mere sham or device. Under the agreement of purchase and under the provisions of The Public Lands Act of
Alberta', the appellant was required to break and seed additional acreage each year. Appel lant was also required, after the seventh year of the agreement, to live on the property for at least three months in every year. The appellant has complied with these terms and has, since 1971, lived on the property the year 'round. His actions, since acquisition, have been consistent with the operation of a business, having regard to the severe limitations placed on him by lack of capital and income (his gross income during these years being approximately $5,000-$6,- 000). I cannot conceive of anyone acquiring a farm consisting of solid bush 64 miles from his residence as a hobby or a vacation retreat. Fur thermore, I cannot believe that the appellant would have legally obligated himself to break and crop the land and to live there permanently if he had not seriously intended to be in the business of farming.
The term "business" is defined in the Income Tax Act in section 139(1)(e) as follows:
139. (1) In this Act,
(e) "business" includes a profession, calling, trade, manu facture or undertaking of any kind whatsoever and includes an adventure or concern in the nature of trade but does not include an office or employment;
I agree with Mahoney J. where, in the case of The Queen v. Matthews 2 he expressed the view that:
Subject to the exclusion of an office or employment, this statutory definition does not, in my view, narrow the broad definition that:... "anything which occupies the time and attention and labour of a man for the purpose of profit is business" (Smith v. Anderson (1880) 15 Ch. D. 247 per dessel M.R. at 258).
It seems to me that this appellant has satisfied all of the requirements both of the statutory
' R.S.A. 1955, c. 259, ss. 171, 172 and 172(a), as
amended.
2 [1974] C.T.C. 230 at 235.
definition and of the definition of Jessel M.R. quoted (supra).
Appellant was engaged in a farming undertak ing, which, from the outset, occupied a great deal of his time, attention and labour. I am 'also satisfied on the evidence that appellant's pur pose was profit. I cannot believe that anyone would spend the backbreaking hours and days and months which appellant spent on this farm in clearing it, felling the trees, piling the lumber and then building his home and seeding the cleared portion as a hobby or for pleasure. Appellant said his purpose was profit, that he eventually expected to make a living on the farm for his family and I accept his evidence in this connection.
Turning now to the respondent's submission that even if the appellant was engaged in the business of farming, said business was not car ried on for profit or with a reasonable expecta tion of profit. In support of this submission, the case of Holley v. Minister of National Revenue 3 was cited. In my view, that decision is distin guishable on its facts from the case at bar. In the Holley case (supra) Sweet D.J. found that what the appellant did was more in the nature of a hobby and "a pleasurable activity per se". In that case, the appellant was .a surgeon practising at Quesnel, B.C. The farm he acquired was only 8 miles from Quesnel connected thereto by all- weather roads. The facts in that case are entire ly different from those here present.
After giving consideration to all the facts and circumstances of this case, I have concluded that there was "a reasonable expectation of profit" in the appellant's farming business. Through hard work and diligence, the appellant had made substantial progress in the first three years, to the point where he had 85 acres cleared and seeded to grass. By 1971, some 110 acres were cleared and he commenced to acquire a modest herd of cattle. Through the
73 DTC 5417.
years 1971 to 1973, he had increased his income from the farm although the farming operation was still showing a loss. However, he said that in 1974, the farm income would just about equal the farm expenses. Surely, this is substantial progress, having regard to the appel lant's lack of adequate financial resources. He is presently in the process of clearing another 100 acres. This will give him a total of 210 acres for pasture for his cattle. The evidence was that it takes approximately 11 acres of pasture to ade quately sustain one cow. Thus he will shortly be in a position to sustain some 60 head of cattle. His goal is a herd of 100 head but he is already taking steps to acquire additional pasture land. I found his evidence in this connection to be reasonable and realistic. I have no doubt that, in all probability, the appellant's farming operation will commence to show a profit next year or the year after. As Mahoney J. said in the Matthews case (supra) 4 :
Each case where the realization of profit is so postponed will have to be examined on its own merits to ascertain that the profit is not merely notional and that the expectation of profit is indeed reasonable.
An examination of the facts and circumstances of subject case has convinced me that appel lant's expectation of profit was indeed reason able. In my view, this appellant has satisfactori ly explained the reasons why it is taking so long to make his farming business a profitable ven ture, the main reason being his lack of funds. It would, in my opinion, be quite unfair to penalize this taxpayer for his lack of adequate financial resources and to infer from that circumstance, a lack of intention on his part to engage in the farming business on a commercial basis. This appellant has done everything he could possibly do, within the limits of his own financial resources, to engage in farming and given his determination and his industry, and having regard to the progress he has made through the years, I am satisfied that the expectation of profit is reasonable.
4 [1974] C.T.C. 230 at p. 236.
I have accordingly concluded that the deduc tion of the losses claimed for the taxation years 1966 and 1967 was proper.
The appeal is therefore allowed with costs.
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