[13] This was the first time that timber had ever been logged from the land. Jens' business was ranching, not logging. The sale of the profit a` prendre was an isolated transaction which was done in order to allow Gertrude to realize the full value of her capital asset including her timber rights and to allow Jens to purchase. Jens' solicitation of bids was for the purpose of realizing the best price from the sale of the profit a` prendre so as to maximize the value of the land. There was no use or production of a continuing nature for the purposes of Gertrude's sale. The sale of the profit a` prendre did improve the value of the land for ranching purposes. But that improvement was marginal and incidental to the entire transaction. [14] Paragraph 12(1)(g) of the Income Tax Act reads: (1) There shall be included in computing the income of a taxpayer for a taxation year as income from a business or property such of the following amounts as are applicable: (g) any amount received by the taxpayer in the year that was dependent on the use of or production from property whether or not that amount was an instalment of the sale price of the property, except that an instalment of the sale price of agricultural land is not included by virtue of this paragraph; It was reviewed in a context similar to this case by Kempo, J.T.C.C. of this Court and subsequently by Strayer, J. of the Federal Court Trial Division, both of whom found for the Appellant. The following quote taken from that decision of Strayer, J. in The Queen v. Mel-Bar Ranches Ltd., 89 DTC 5189 at 5191 and 5192 reads: ... This was a one-time contract for the removal of timber in a specified area within a specified time. It as eminently reasonable that the purchaser should pay, and the defendant should receive, a price related to the amount of usable timber actually cut and removed in the fulfilment of the objective of removing timber. ...It appears to me that when clause 1 was drafted it was the assumption of all concerned that there was approximately 25,500 tonnes of logs which could and should be removed from the area designated by the contract. Recognizing the difficulties of estimating quantities available this precisely, the price was fixed at a rate per tonne actually cut. But the main focus throughout was the objective of getting all usable timber re- moved from the area designated within the time specified. That the defendant realized some undoubtedly welcome proceeds from the clearing of its land for grazing does not make those proceeds revenues "dependent upon the use of or production from property" in my understanding of the jurisprudence. Pursuant to the judgement of Strayer J., and for the same reasons, the amount received by Jens from the sale of the profit a` prendre was not dependent upon the use of or production from property within paragraph 12(1)(g) of the Income Tax Act. Moreover, the siblings had inherited the land and timber from their father who had used it in the same way as Jens and Christian did, that is as agricultural land used for ranching purposes. Jens testified that when they rounded the cattle up on the land to return them to Lemon Creek for the winter, they spread fresh hay in the meadow so as to attract the cattle out of the timber and surrounding area. The cattle sheltered themselves in the timber when they were not grazing. The siblings continued to use it in the same way as their father had for the purpose of Jens' and Christian's ranching partnership. PREVIOUS PAGE NEXT PAGE