POTTER, J :—This is an appeal by the Minister of National Revenue, hereinafter called the appellant, from a decision of the Income Tax Appeal Board dated November 6, 1953, allowing an appeal from an assesment by the appellant, dated November 10, 1952, whereby the appellant added to the income of the respondent for the taxation year of 1951 the sum of $3,000.00, which had been deducted by the respondent from his income for that year as payments made to his daughters, viz., Nora Margaret Torrance Beardmore and Mary Frances Torrance Beardmore (Mrs. William Steels) during the year 1951, allegedly, pursuant to a written separation agreement dated November 17, 1939, and made between the respondent of the first part, Laura Beardmore, his wife, of the second part, and National Trust Company, Limited of the third part, and which the respondent claimed to be entitled to deduct under the provisions of Section 11(1) (j) of the Income Tax Act, formerly Section 11(1) (1) thereof.
The agreement, which is more fully set out and discussed in the judgment in the previous appeal between the same parties, hereinafter referred to, provided for an annual payment to the wife of $7,500.00 in twelve equal monthly instalments of $625.00 each, and paragraph 9 provided that, in the event of the wife predeceasing the respondent, he would thereafter pay to each of the said daughters, during his lifetime, a sum annually of $1,500.00 in equal monthly instalments of $125.00 each.
The wife died September 4, 1950, and during the year 1951 the respondent paid to his daughters sums totalling $1,500.00 each, or together $3,000.00, and claimed to be entitled to deduct that amount from his taxable income for that year.
Following the assessment by the appellant, the respondent, in accordance with the procedure laid down by the Income Tax Act, appealed to the Income Tax Appeal Board, which on November 6, 1953, allowed the appeal and directed that the assessment be referred back to the appellant for re-assessment by allowing the amount of $3,000.00 as a deduction in computing the respondent’s taxable income.
An appeal from the judgment of the Income Tax Appeal Board came on for hearing before this Court at Toronto on May 27, 1954, at the same time as the appellant’s appeal in another matter, numbered 84251, and between the appellant and the respondent, who were represented in both appeals by the same counsel, and as the same points of law were involved in both appeals it was agreed by counsel for both parties that the arguments in the first-mentioned appeal, No. 84251, would be used as the arguments in this appeal and that the judgment in the first appeal would, mutatis mutandis, be taken as the judgment in this appeal.
For the reasons given in the judgment in appeal No. 84251, I hold that the sum of $3,000.00, the total of the payments made by the respondent to his said daughters, were not payments deductible from the respondent’s income for the taxation year of 1951 under Section 11(1) (j) of the Income Tax Act.
The appeal will be allowed and the assessment restored, and the appellant will have his costs.
Judgment accordingly.