Date: 19981130
Docket: T-875-93
BETWEEN:
ESTATE OF JEAN WHITE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT
WETSTON J.
[1] Robert E. White appeared, without counsel, as the executor of the estate of his wife, the late Jean White, in respect of the income tax assessment of Jean White's 1979 taxation year. A Notice of Reassessment dated June 25th, 1986 was sent to the plaintiff and Jean White was reassessed to include in her terminal return of income the deemed dispositions of:
| a) 1080 King Street West, Hamilton, generating a capital gain of $9,200.00; |
| b) Jean White's partnership interest in Robinson Farms, Glenbrook, generating a capital gain of $12,612.00; and |
| c) vacant land in Grimsby, generating income of $22,788.00. |
[2] In computing income for Jean White's terminal return for her 1979 taxation year, the plaintiff failed to include in income a capital gain of $9,200.00 on the deemed disposition of 1080 King Street West, Hamilton, recapture of capital cost allowance of $14,986.00 on the deemed disposition of 1080 King Street West, a capital gain of $12,612.00 on the deemed disposition of Jean White's partnership interest in Robinson Farms and income of $22,788.00 on the deemed disposition of vacant land in Grimsby.
[3] In reassessing Jean White's terminal return for her 1979 taxation year, the Minister included in income the above amounts.
[4] The Minister contended that pursuant to subsection 70(5) and subsection 70(5.2), Jean White was deemed to have disposed of capital property, depreciable property and land inventory of a business immediately before death and therefore that recaptured capital cost allowance of $14,986.00 and a capital gain of $4,600.00 were properly included income in respect to 1080 King Street West, a capital gain of $6,306.00 was properly included in income in respect to the partnership interest in Robinson Farms and profit of $22,788.00 was properly included in income in respect to the deemed disposition of the land for Jean White's 1979 taxation year.
[5] At the deceased's date of death, the vacant land which had been subdivided into six lots on a registered plan of subdivision, had a fair market value of $35,000.00 per lot. Mr. White did not contest the valuations associated with King Street and Robinson Farms. He only argued that the lots were overvalued at the date of death because a rare Indian burial ground was discovered on this property. This site is known as the Neutral Indian Burial Site at Grimsby.
[6] Mr. White concluded that the value per lot (5 lots) should have been $29,849.56 per lot not $35,000.00. However, while he provided some calculations to support his opinion, his evidence was subjective, somewhat impressionistic and clearly hearsay. The onus is on the plaintiff, and on the evidence before the Court, there is simply no basis to disagree with the valuation of the Minister.
[7] Mr. White contended that the costs regarding the sale of the lots from the time of death to the sale dates should be included. This would result in costs of $43,152.21 thereby reducing the value of the lots from $35,000.00 to $29,849.56. Mr. White is concerned with the notion of double taxation. However, the Income Tax Act provides for a deemed disposition on death. While there is a deemed disposition on death, it must also be recognized that the estate is taxed separately, and there is no authority for the proposition that Mr. White takes.
[8] Accordingly, the appeal is dismissed. There is no order as to costs.
"Howard I. Wetston"
Judge
Toronto, Ontario
November 30, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-875-93
| STYLE OF CAUSE: ESTATE OF JEAN WHITE |
- and -
| HER MAJESTY THE QUEEN |
DATE OF HEARING: TUESDAY, NOVEMBER 17, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: WETSTON J.
DATED: MONDAY, NOVEMBER 30, 1998
APPEARANCES: Mr. Robert White
For the Plaintiff
Ms. Margaret Nott
For the Defendant
SOLICITORS OF RECORD: Robert White
| 80 Rainbow Drive |
| Hamilton, Ontario |
| L8K 4E8 |
| For the Plaintiff |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Defendant
FEDERAL COURT OF CANADA
Date: 19981130
Docket: T-875-93
Between:
| ESTATE OF JEAN WHITE |
Plaintiff
- and -
| HER MAJESTY THE QUEEN |
Defendant
REASONS FOR JUDGMENT