Principal Issues: (a) Whether a particular property acquired by the taxpayer would be a replacement property if the disposition of the former business property occurred three to five years after the acquisition of the particular property, (b) Whether a particular property acquired by the taxpayer would be a replacement property if it was acquired from a related party, and (c) Whether a particular property acquired by the taxpayer would be a replacement property if it was acquired by virtue of a subsection 85(1) rollover.
Position: Question of fact.
Reasons: Paragraphs 13(4.1)(a) and 44(5)(a) of the Act require that it must be reasonable to conclude that the property was acquired by the taxpayer to replace the former property. To satisfy this requirement, there must be some correlation or direct substitution, that is, a causal relationship between the disposition of a former property and the acquisition of the new property or properties. On this basis, it would be difficult to conclude that a property acquired several years prior to the disposition of the former property is in fact a replacement property. Therefore, in (a) the particular property will not likely be considered a replacement property. With respect to (b), a taxpayer is not precluded from benefiting from the application of the replacement property rules because the property acquired as a replacement was acquired from a non-arm's length person, but other provisions of the Act, such as section 69, must be considered. With respect to (c) we do not have a general position on the application of the replacement property rules where the property acquired as a replacement was acquired by way of a subsection 85(1) rollover; a determination of whether the replacement property rules apply in such a situation can only be made after a complete review of all the facts and documentation surrounding the particular situation.