Rothstein
J.A.:
Issue
The
broad
question
in
this
appeal
from
the
Tax
Court
of
Canada
(Rip
J.T.C.C.)
is
whether
the
appellant
is
entitled
to
claim
his
proportionate
share
of
certain
“partnership”
losses
for
his
1988
taxation
year.
The
answer
to
this
question
depends
upon
whether
the
appellant’s
relationship
with
others
when
the
losses
arose
was
as
a
partner
in
a
partnership.
Proceedings
Leading
to
the
Appeal
By
notice
of
reassessment
dated
August
10,
1993,
the
Minister
of
National
Revenue
(Minister)
disallowed
the
partnership
losses
claimed
by
the
appellant.
The
appellant
filed
a
Notice
of
Objection
but
the
Minister
confirmed
the
reassessment
on
November
23,
1994.
The
appellant
appealed
to
the
Tax
Court
of
Canada.
Before
the
Tax
Court,
the
Minister
challenged
the
entitlement
of
the
appellant
to
deduct
the
partnership
losses
on
five
grounds,
four
of
which
the
learned
Tax
Court
Judge,
in
very
comprehensive
reasons,
did
not
accept.
First,
the
learned
Judge
found
the
transactions
entered
into
by
the
appellant
were
not
a
sham.
He
also
found
the
building,
the
sale
of
which
gave
rise
to
a
portion
of
the
losses
the
appellant
wished
to
claim,
had
originally
been
acquired
some
years
earlier
by
the
partnership
for
the
purpose
of
gaining
or
producing
income
and
that
the
property
was
therefore
depreciable
property
for
the
purposes
of
paragraph
13(21)(b)
and
subsection
20(16)
of
the
income
Tax
Act
and
paragraph
1102(1)(c)
of
the
Regulations
which
permit
the
claiming
of
a
terminal
loss
on
the
disposition
of
depreciable
property.
Third,
the
Tax
Court
Judge
rejected
the
Minister’s
submissions
that
the
transactions
were
legally
ineffective.
Fourth,
he
found
that
subsections
245(1)
and
55(1),
pertaining
to
the
artificial
creation
of
losses,
did
not
apply
to
the
transactions
in
question.
The
Income
Tax
Act,
supra,
does
not
provide
a
definition
of
“partnership”,
nor
is
there
federal
partnership
legislation
analogous
to
that
for
cor-
porations
under
the
Canada
Business
Corporations
Act
-
Judge
Rip
considered
the
definition
of
partnership
in
the
common
law
provinces,
namely,
“the
relationship
that
subsists
between
persons
carrying
on
business
in
common
with
a
view
to
profit”.
In
Texas,
where
the
partnership
was
registered,
the
definition
of
partnership
“is
an
association
of
two
or
more
persons
to
carry
on
as
co-owners
of
a
business
for
profit”.
The
learned
Judge
concluded:
There
is
no
significant
difference
in
the
definition
of
a
partnership
contained
in
these
Texas
statutes
and
the
various
provincial
statutes:
all
require
a
relationship
or
an
association
between
persons
carrying
on
activity
with
a
view
to
or
for
profit.
The
learned
Judge
found
that
the
appellant
and
the
others
with
whom
he
had
a
relationship
were
not
carrying
on
business
in
common
with
a
view
to
profit
and
that
therefore,
there
was
no
partnership.
Because
the
relationship
was
not
one
of
partnership,
he
found
that
the
appellant
was
not
entitled
to
deduct
losses
under
section
96
of
the
Income
Tax
Act,
which
deals
with
taxation
in
relation
to
partnerships,
in
computing
his
1988
taxable
income.
The
appellant’s
appeal
was
dismissed.
The
only
issue
in
this
Court
is
whether
the
appellant
was
a
partner
in
a
partnership.
If
so,
he
may
claim
the
losses
in
question;
if
not,
the
appellant
may
not
deduct
losses
under
section
96
of
the
Income
Tax
Act.
The
Minister
did
not
cross-appeal
or
argue
any
of
the
grounds
rejected
by
the
learned
Tax
Court
Judge.
Facts
In
1985,
a
limited
partnership
was
created
by
U.S.
residents
under
the
laws
of
Texas,
called,
“The
Commons
at
Turtle
Creek
Ltd.”
(Commons).
The
limited
and
general
partners
were
not
Canadians
(the
Americans).
The
Commons
acquired
land
and
constructed
an
apartment
building
on
the
land
(the
Dallas
Apartment
Complex).
The
land
cost
was
US$2,027,361
and
the
construction
cost
was
US$6,696,021.
In
August
1988,
the
fair
market
value
of
the
land
was
appraised
at
US$1,600,000
and
the
building
at
US$3,400,000.
The
appellant
is
a
lawyer
in
a
large
Calgary
law
office.
In
the
summer
of
1988,
the
appellant
and
one
of
his
law
partners
ascertained
from
a
real
estate
agent
that
for
US$180,000,
through
a
series
of
transactions,
they
could
acquire
and
realize
the
losses
arising
from
the
difference
between
the
original
cost
in
1985
and
the
August
1988
market
value
of
the
Dallas
Apartment
Complex
which
they
could
then
use
as
deductions
in
computing
their
Canadian
taxable
income.
In
order
to
secure
the
losses,
the
appellant
and
thirty-four
other
Canadians
(his
law
partners
and
some
other
persons)
and
an
Alberta
corporation
(all,
the
Canadians),
arranged
to
become
assignees
of
the
interests
of
the
original
U.S.
partners
in
the
Commons.
The
Canadians
paid
the
U.S.
partners
US$140,000
for
assignments
of
their
interests,
US$4,000
in
respect
of
certain
legal
fees,
and
US$36,000
in
commission
to
the
agent.
A
series
of
transactions
took
place
on
August
29,
1988
which
were
intended
to
secure
the
losses
to
the
Canadians
all
according
to
a
predetermined
closing
agenda:
1)
2:40
p.m.
The
Commons
granted
an
option
to
acquire
the
Dallas
Apartment
Complex
to
a
new
limited
partnership,
the
Commons
XXII
Limited
(Commons
XXII)
consisting
of
the
same
U.S.
limited
partners
as
the
Commons
and
a
new
U.S.
general
partner.
2)
2:40
p.m.
The
Commons
XXII
granted
an
option
to
the
Commons
to
acquire
the
Dallas
Apartment
Complex
for
US$10,600,000.
This
option
was
to
expire
on
December
1,
1991
or
earlier
if
the
Commons
XXII
sold
the
Dallas
Apartment
Complex
to
another
party.
3)
2:58
to
4:21
p.m.
A
series
of
amendments
to
the
Commons
partnership
agreement
and
assignments
providing
for
the
reaffirmation
of
the
Commons
as
a
continuing
partnership,
and
the
staggered
assignment
of
the
partnership
interests
of
the
Americans
to
the
Canadians,
resulting
in
the
admission
of
the
Canadians
to
the
Commons
and
the
withdrawal
of
the
Americans
from
the
Commons.
4)
4:24
p.m.
Purchase
by
the
Commons
of
an
interest
in
an
oil
and
gas
property
in
Canada
for
Cdn$5,000.
5)
4:41
p.m.
Commons
XXII
exercised
its
option
to
acquire
the
Dallas
Apartment
Complex
from
the
Commons.
6)
4:46
to
4:51
p.m.
Dallas
Apartment
Complex
and
all
other
assets
of
the
Commons
(other
than
the
Canadian
oil
and
gas
property)
transferred
from
the
Commons
to
Commons
XXII
by
general
warranty
deed,
blanket
conveyance,
bill
of
sale
and
assignment,
and
assignment
of
leases.
The
transactions
were
intended
to
result
in:
1)
the
Canadians
becoming
partners
(99.97%
general
partnership
interests
and
.03%
limited
partnership
interest)
in
the
ongoing
Commons
limited
partnership
by
assignment
of
partnership
interests
from
the
Americans
for
a
total
cost
of
US$180,000.
2)
disposition
of
the
Dallas
Apartment
Complex
by
the
Commons
resulting
in
the
acquisition
and
realization
of
accounting
losses
to
the
Canadians
which
the
Canadians
could
then
use
as
deductions
in
computing
their
Canadian
taxable
income
for
1988
under
section
96
of
the
Income
Tax
Act;
3)
acquisition
of
a
one
percent
interest
in
a
Canadian
oil
and
gas
property
at
a
cost
of
Cdn$5,000.
In
the
1988
taxation
year,
the
Tax
Court
Judge
found
that
each
of
the
Canadians
was
allocated
his
proportionate
percentage
of
the
following
amounts
arising
from
the
sale
of
the
Dallas
Apartment
Complex
by
the
Commons
and
in
respect
of
the
Canadian
oil
and
gas
property.
In
the
appellant’s
case,
this
was
2.60156
percent
of
the
following
amounts.
(Canadian
dollars)
|
Partnership
|
|
Gross
Amount
|
Terminal
Loss
-
Dallas
Apartment
Complex
|
$5,869,631.00
|
Operating
Losses
-
Dallas
Apartment
Complex
|
53,176.00
|
Operating
Losses
-
Canadian
Oil
and
Gas
Property
|
240.00
|
Total
Business
Loss
|
$5,923,047.00
|
Additions
to
Cumulative
Canadian
Oil
and
Gas
|
|
Property
Expense
|
4,000.00
|
Additions
to
Class
41
Assets
(not
eligible
for
invest
|
|
ment
tax
credits)
|
1,000.00
|
Capital
Loss
on
Sale
of
Land
(Component
of
the
|
|
Dallas
Apartment
Complex)
|
561,676.00
|
Capital
Gain
on
Foreign
Exchange
on
Repayment
of
|
|
Debt
|
$
845,032.00
|
Analysis
I.
Was
Profit
Sharing
an
Ancillary
Purpose?
(i)
The
Principle
Enunciated
in
Continental
Bank
As
indicated,
the
learned
Tax
Court
Judge
found
that
the
relationship
subsisting
between
the
Canadians
was
not
that
of
carrying
on
business
in
common
with
a
view
to
profit
and
therefore,
they
were
not
in
a
partnership
with
respect
to
the
ownership
of
the
Dallas
Apartment
Complex
and
not
entitled
to
deduct
losses
under
section
96
of
the
Income
Tax
Act.
There
is
no
doubt
that
the
objective
of
the
series
of
transactions
entered
into
by
the
appellant
and
the
Commons
was
to
dispose
of
the
Dallas
Apartment
Complex
and
acquire
and
realize
losses
that
would
be
deductible
for
Canadian
income
tax
purposes.
However,
that
does
not
negate
the
possibility
that
carrying
on
business
in
common
with
a
view
to
profit
may
be
an
ancillary
purpose.
In
Continental
Bank
of
Canada
v.
/?.
,
Bastarache
J.,
speaking
for
a
unanimous
court
on
this
point,
although
in
dissent
in
the
result,
stated
at
paragraph
43:
Simply
because
the
parties
had
the
overriding
intention
of
creating
a
partnership
for
one
purpose
does
not,
however,
negate
the
fact
that
profit-making
and
profit-
sharing
was
an
ancillary
purpose.
This
is
sufficient
to
satisfy
the
definition
in
s.
2
of
the
Partnerships
Act
in
the
circumstances
of
this
case.
At
pp.
10-11,
Lindley
&
Banks
on
Partnership
makes
the
following
observation:
if
a
partnership
is
formed
with
some
other
predominant
motive
[other
than
the
acquisition
of
profit],
e.g..,
tax
avoidance,
but
there
is
also
a
real,
albeit
ancillary,
profit
element,
it
may
be
permissible
to
infer
that
the
business
is
being
carried
on
“with
a
view
of
profit.”
If,
however,
it
could
be
shown
that
the
sole
reason
for
the
creation
of
a
partnership
was
to
give
a
particular
partner
the
“benefit”
of,
say,
a
tax
loss,
when
there
was
no
contemplation
in
the
parties’
minds
that
a
profit
...
would
have
derived
from
carrying
on
the
relevant
business,
the
partnership
could
not
in
any
real
sense
be
said
to
have
been
formed
“with
a
view
of
profit”.
The
first
question
is
whether,
once
the
Canadians
became
members
of
the
Commons,
there
was
any
business
being
carried
on
with
a
view
to
profit
which
was
ancillary
to
their
tax
minimization
objective.
(H)
The
Dallas
Apartment
Complex
In
Continental
Bank
of
Canada,
the
reassessed
taxpayer
was
a
member
of
the
partnership
for
only
three
days,
during
which
profit
was
earned
and
$130,726
was
distributed
to
the
taxpayer.
As
stated
by
Bastarache
J.
at
paragraph
44:
This
is
not
a
case
where
the
disentitlement
of
one
partner
to
a
share
of
the
profits
was
agreed
to
by
the
parties;
nor
is
it
a
case
where
no
profits
were
anticipated
during
the
term
of
a
partner’s
involvement.
During
the
period
in
which
Leasing
and
the
Bank
were
partners
in
the
business,
the
Partnership
earned
a
profit
from
its
leasing
operations
and
that
profit
was
distributed
at
year
end.
Here,
once
the
Canadians
acquired
their
interests
in
the
Commons,
the
Dallas
Apartment
Complex
was
owned
for
only
minutes
before
it
was
disposed
of
in
accordance
with
the
option
granted
to
the
Commons
XXII
and
according
to
the
predetermined
closing
agenda.
No
profit
generated
by
the
Dallas
Apartment
Complex
on
August
29,
1988
or
at
any
other
time
was
earned
by
the
Canadians
and
thus
no
distribution
of
any
profit
took
place
to
the
appellant.
Unlike
the
facts
in
Continental
Bank
of
Canada,
with
respect
to
the
Dallas
Apartment
Complex,
no
profits
were
anticipated
for
the
short
period
between
the
time
the
Canadians
acquired
their
interests
in
the
Commons
and
the
disposition
of
the
Dallas
Apartment
Complex.
The
facts
of
the
case
at
the
bar
are
clearly
different
from
those
in
Continental
Bank
of
Canada.
Indeed
the
facts
are
exactly
those
which
Bastarache
J.
sought
to
distinguish
in
Continental
Bank
of
Canada.
Here,
there
was
an
agreement
that
the
Canadians
would
not
share
in
the
profit
of
the
Dallas
Apartment
Complex.
No
profit
was
anticipated
during
the
term
of
the
Canadians’
involvement
with
the
Dallas
Apartment
Complex.
In
the
few
moments
the
Canadians
became
members
of
the
Commons
and
up
to
the
time
the
Dallas
Apartment
Complex
was
disposed
of,
the
Canadians
were
not
carrying
on
the
business
of
the
Dallas
Apartment
Complex
with
a
view
to
profit.
(iii)
The
Option
to
Re-acquire
the
Dallas
Apartment
Complex
There
is
no
explanation
in
the
evidence
of
the
reason
for
the
Commons
XXII
granting
an
option
to
the
Commons
to
acquire
the
Dallas
Apartment
Complex
for
US$10,600,000
up
to
December
1,
1991.
The
price
is
more
than
double
the
fair
market
value
on
August
29,
1988
and
there
was
no
restriction
on
the
Commons
XXII
from
selling
the
Dallas
Apartment
Complex
to
any
other
purchaser
for
any
price
while
the
option
was
outstanding.
In
an
opinion
from
the
Texas
firm
of
Johnson,
Bromberg
&
Leeds
dated
January
20,
1989,
pertaining
to
the
possible
liability
for
U.S.
income
tax
by
the
Canadians,
the
following
assumption
is
set
forth:
(2)
The
only
assets
of
the
Partnership
are
the
Oil
Properties
and
the
Second
Option,
and
the
Partnership
will
not
exercise,
sell
or
otherwise
dispose
of
the
Second
Option
(other
than
upon
its
expiration
in
accordance
with
its
terms)
and
the
Partnership
will
not
maintain
an
office
or
other
fixed
place
of
business
in
the
United
States
or
actively
manage
its
properties
or
otherwise
conduct
business
in
the
United
States.
There
is
no
evidence
that
this
assumption
was
mistaken.
The
only
inference
to
be
drawn
is
that
the
Canadians
did
not
have
the
intention
of
exercising
the
option
for
the
Dallas
Apartment
Complex.
(iv)
Foreign
Exchange
Gain
The
Minister
reassessed
the
Canadians
for
a
foreign
exchange
gain
with
respect
to
the
August
29,
1988
transactions.
The
appellant
says
the
Minister
is
treating
the
Canadians
as
partners
for
purposes
of
the
foreign
exchange
gain
but
not
for
purposes
of
the
losses
claimed
by
them.
The
Tax
Court
Judge
found
that,
“There
is
no
evidence
the
Canadians
considered
a
foreign
exchange
gain
when
they
entered
into
this
venture”.
The
foreign
exchange
gain
was
not
profit
from
the
carrying
on
of
a
business.
It
could
not
be
as
the
Dallas
Apartment
Complex
was
not
involved
in
foreign
exchange
transactions.
The
Commons
and
the
Canadians
were
not
in
the
foreign
exchange
business.
The
foreign
exchange
gain
was
incidental
to
the
disposition
of
the
Dallas
Apartment
Complex
and
is
not
evidence
of
the
carrying
on
of
a
business
in
common
with
a
view
to
profit.
(v)
The
Oil
and
Gas
Property
With
respect
to
the
Canadian
oil
and
gas
property,
the
learned
Tax
Court
Judge
found
that
the
appellant
could
not
rely
on
this
investment
to
support
the
argument
that
he
and
the
other
Canadians
were
carrying
on
business
in
common
with
a
view
to
profit.
He
found
that
the
appellant
and
the
Canadi-
ans
intended
nothing
other
than
to
obtain
a
tax
loss.
At
page
34
of
his
reasons,
he
states:
There
is
no
question
in
my
mind
that
the
appellant
and
the
other
Canadians
entered
into
the
Turtle
Creek
Series
of
Transactions
to
acquire
a
potential
tax
loss.
This
was
their
sole
purpose.
He
determined
that
the
oil
and
gas
investment
was
only
“window
dressing”.
At
page
36
of
his
reasons,
he
states:
In
the
appeal
at
bar,
as
well,
neither
the
appellant
nor
any
of
the
Canadians
intended
anything
other
than
to
obtain
a
tax
loss
for
the
venture.
The
purchases
of
the
Canadian
Oil
and
Gas
Property
and
the
Montana
Condominium
were
nothing
more
than
window
dressing.
Their
expectation
of
income
from
these
two
properties
was
minimal,
never
even
approaching
the
amount
of
the
loss
that
they
hoped
to
deduct
from
their
income.
The
relationship
subsisting
between
the
Canadians
was
not
that
of
carrying
on
business
in
common
with
a
view
to
profit.
The
Canadians
were
not
associated
to
carry
on
a
business
for
profit.
What
the
Canadians
acquired
for
$5,000
was
a
one
percent
working
interest
in
certain
petroleum
and
natural
gas
rights
and
the
tangibles
and
the
miscellaneous
interests.
There
is
no
other
evidence
of
any
type
of
involvement
with
the
oil
and
gas
investment
by
the
Canadians.
Indeed,
in
the
fall
of
1988,
the
property
was
flooded
and
eventually
was
shut
in.
No
profit
was
ever
earned
by
the
Canadians
from
this
investment.
There
was
vague
oral
evidence
from
the
appellant
that
the
Canadians
expected
to
earn
a
profit
of
$1,000
to
$1,500
per
year
from
the
oil
and
gas
investment:
[The
appellant:]
Well,
Allan
Ross
and
myself
were
the
ones
that
spoke
to
one
of
our
other
colleagues,
Adrian
Phillips,
who
had
a
company,
which
I
believe
was
called
Hydrostatic
Resources
or
a
name
to
that
effect.
It
owns
oil
and
gas
interests.
We
were
generally
advised
that
there
was
a
producing
well.
The
price
of
oil
and
gas
properties
generally
is
determined
based
on
the
income
from
the
well,
so
the
income
from
the
well
probably
would
have
been
in
the
order
of
$1,000
to
$1,500
a
year
and
that
would
have
derived
the
$5,000
purchase
price.
Q.
And
that
was
what
you
reasonably
expected
is
$1,000?
A.
Probably
in
the
order
of
1,000
to
$1,500.
There
were
no
financial
statements
or
other
financial
documentation
pertaining
to
the
oil
and
gas
investment.
In
view
of
the
Tax
Court
Judge’s
opinion
that
acquiring
a
tax
loss
was
the
sole
purpose
of
the
Canadians
and
that
the
oil
and
gas
property
was
“window
dressing”,
it
is
obvious
he
did
not
accept
this
as
evidence
of
the
carrying
on
of
a
business
in
common
with
a
view
to
profit.
However,
even
if
this
may
be
evidence
of
an
intention
for
profit,
it
is
not
evidence
that
the
Canadians
were
carrying
on
a
business
with
respect
to
the
oil
and
gas
investment.
It
is
well
established
that
the
mere
co-ownership
of
property
is
not,
on
its
own,
evidence
of
carrying
on
of
a
business.
Here,
the
evidence
is
that
there
was
a
company
operating
the
property.
The
appellant
did
not
remember
the
name
of
the
company.
The
company
was
not
one
of
the
Canadians
associated
with
the
appellant
in
the
Commons.
I
think
the
appellant
would
have
to
have
introduced
some
further
evidence
to
support
the
suggestion
that
the
investment
of
$5,000
for
a
one
percent
working
interest
in
the
oil
and
gas
property
constituted
the
carrying
on
by
the
Canadians
of
a
business
in
common
with
a
view
to
profit.
Indeed,
although
the
oil
and
gas
property
was
raised
in
oral
argument,
in
his
memorandum
of
fact
and
law,
the
appellant
did
not
advance
the
oil
and
gas
investment
as
evidence
that
the
definition
of
partnership
was
met
by
the
Canadians.
(vi)
The
Montana
Condominium
The
Montana
Condominium
was
acquired
on
December
29,
1989,
almost
one
and
a
half
years
after
the
relevant
transactions.
There
is
little
evidence
relative
to
it
other
than
it
never
earned
a
profit
and
that
its
appraised
value
in
1996
exceeded
its
acquisition
cost.
There
is
no
evidence
of
any
intention
by
the
Canadians,
in
1988,
when
they
entered
the
Commons,
to
acquire
the
Montana
Condominium
or
to
carry
it
on
as
a
business
with
a
view
to
profit.
The
relevance
of
the
Montana
Condominium
for
purposes
of
determining
whether,
in
1988,
the
Canadians
were
partners
in
a
partnership
is
not
evident.
As
with
the
oil
and
gas
interest,
the
appellant’s
written
memorandum
does
not
include
an
argument
based
on
the
Montana
Condominium
as
evidence
of
an
ancillary
profit
element
at
the
relevant
time.
(vii)
The
Documents
There
is
no
doubt
that
a
series
of
documents
were
carefully
prepared
with
the
intention
that
the
Commons
should
continue
as
a
limited
partnership
and
that
the
Canadians
should
become
general
and
limited
partners
in
it.
Having
regard
to
the
documents
alone,
one
would
conclude
that
the
Canadians
succeeded.
However,
the
facts
are
that
there
was
no
business
carried
on
by
the
Commons
after
the
Canadians
took
up
their
assignments.
Unlike
Continental
Bank
of
Canada,
there
were
no
profits
generated
or
distributed
to
the
Canadians.
In
Continental
Bank
of
Canada,
Bastarache
J.
noted
that
parties
may
enter
into
a
partnership
for
a
single
transaction.
However,
there
must
still
be
compliance
with
the
definition
of
partnership.
At
page
6518
he
states:
As
long
as
the
parties
do
not
create
what
amounts
to
an
empty
shell,
that
does
not
in
fact
carry
on
business,
the
fact
that
the
partnership
was
created
for
a
single
transaction
is
of
no
consequence
Similarly,
as
long
as
the
definition
in
s.
2
of
the
Partnership
Act
is
satisfied,
a
person
is
permitted
to
create
a
partnership
for
the
purpose
of
using
s.
97(2)
of
the
Income
Tax
Act.
It
is
recognized
that
the
definition
of
a
partnership
requires
that
business
actually
be
carried
on
and
that
there
is
no
such
requirement
for
a
corporation.
However,
that
does
not
detract
from
the
principle
that
a
person
should
be
permitted
to
create
a
partnership
for
a
single
transaction.
In
the
case
at
bar,
insofar
as
the
Canadians’
involvement
was
concerned,
the
Commons
was
an
empty
shell
that
did
not
actually
carry
on
business.
Once
the
Canadians
became
members
of
the
Commons,
all
that
transpired
was
a
series
of
transactions
leading
to
the
disposition
of
the
Dallas
Apartment
Complex
and
the
acquisition
of
the
Canadian
oil
and
gas
property.
As
already
determined,
they
did
not
carry
on
a
business
in
common
with
a
view
to
profit
in
respect
of
either
the
Dallas
Apartment
Complex
or
the
oil
and
gas
property.
In
Continental
Bank
of
Canada,
Bastarache
J.
instructs
that
the
existence
of
a
partnership
is
dependent
on
the
facts
and
circumstances
of
each
particular
case.
At
page
317
he
states:
The
existence
of
a
partnership
is
dependent
on
the
facts
and
circumstances
of
each
particular
case.
It
is
also
determined
by
what
the
parties
actually
intended.
As
stated
in
Lindley
&.
Banks
on
Partnership
(17th
ed.,
1995),
at
p.
73:
In
determining
the
existence
of
a
partnership
...
regard
must
be
paid
to
the
true
contract
and
intention
of
the
parties
as
appearing
from
the
whole
facts
of
the
case.
In
A.E.
Lepage
v.
Kamex
Developments
Ltd.,
supra,
Blair
J.A.
found
that
whether
or
not
a
partnership
exists
“depends
on
their
intention
as
disclosed
by
all
the
facts
of
the
case”
.
In
this
case,
whether
a
partnership
exists
cannot
be
determined
by
exclusive
reference
to
the
documents.
All
the
facts
must
be
considered
and
when
they
are,
it
is
apparent
that
the
definition
of
partnership
was
not
satisfied.
(viii)
Conclusion
as
to
Whether
Profit
Sharing
was
an
Ancillary
Purpose
1
conclude
that
when
they
were
members
of
the
Commons,
neither
the
Dallas
Apartment
Complex
nor
the
oil
and
gas
investment
were
businesses
being
carried
on
for
profit
by
the
Canadians.
Accordingly,
unlike
the
facts
in
Continental
Bank
of
Canada,
there
was
“no
real,
albeit
ancillary
profit
element”
to
permit
the
inference
that
a
business
was
being
carried
on
with
a
view
to
profit
in
order
to
satisfy
the
definition
of
partnership.
2.
Were
the
Canadians
Partners
by
Reason
of
Assignment
of
Partnership
Interests
in
the
Commons?
Does
the
“no
ancillary
profit
sharing
purpose”
conclusion
inevitably
mean
that
the
Canadians
were
not
in
partnership
after
they
acquired
their
interests
in
the
Commons?
The
Canadians
were
assignees
of
partnership
interests.
The
respondent
concedes
that
the
Commons
was
a
valid
limited
partnership
prior
to
the
Canadians
acquiring
their
interests.
Could
the
assignment
of
partnership
interests
in
the
Commons
to
the
Canadians
constitute
them
as
partners
in
a
partnership
even
though
their
association
did
not
meet
the
definition
of
partnership?
(i)
The
Expert
Evidence
In
evidence
before
the
learned
Tax
Court
Judge
was
the
December
10,
1996
opinion
of
Alan
R.
Bromberg,
Professor
of
Law
at
Southern
Methodist
University
and
counsel
to
the
firm
of
Jenkins
&
Gilchrist.
Among
other
qualifications,
Professor
Bromberg
is
the
author
of
texts
and
articles
on
partnership
and
wrote
substantial
parts
of
the
Texas
partnership
statutes.
With
respect
to
the
Commons,
Professor
Bromberg
was
of
the
opinion
that
under
Texas
law,
the
Commons
was
a
valid
partnership
when
the
Canadians
entered
and
that
they
became
partners
in
the
Commons.
At
paragraphs
3.15
and
4
of
his
opinion,
he
states:
3.15
A
limited
partnership
is
created
by
compliance
with
statute
TUPA
s.
3.
Once
validly
created,
the
Commons
remained
in
existence
and
valid
as
a
limited
partnership
despite
changes
in
its
operations,
members
or
stated
business
until
dissolved,
wound
up
and
terminated.
TUPA
s.30,
TULPA
25(a).
See
Alan
R.
Bromberg,
Partnership
Dissolution:
Causes,
Consequences
and
Cures,
43
Texas
Law
Review
631,
640-644
(1965).
Dissolution
did
not
occur
in
the
course
of
the
situation.
4.
Conclusion
Since
all
of
the
described
steps
were
authorized
and
none
of
them
dissolved
the
partnership:
(1)
the
Commons
is
a
valid
partnership
at
the
time
the
Canadian
residents
acquired
their
interests;
(2)
the
Canadian
residents
became
partners
in
the
Commons.
This
conclusion
is
based
on
the
assumptions
and
subject
to
the
limitations
described
in
Part
V
below.
(ii)
The
Conclusion
of
the
Trial
Judge
The
learned
Trial
Judge
rejected
Professor
Bromberg’s
opinion.
At
page
36
of
his
reasons
he
states:
I
find
the
Canadians
were
not
partners
with
respect
to
ownership
of
the
Dallas
Apartment
Complex.
My
conclusion
is
not
in
accord
with
Professor
Bromberg’s
opinion.
However,
nowhere
in
his
opinion
does
Professor
Bromberg
consider
whether
the
Canadians
were
carrying
on
“a
business
for
profit”.
The
Federal
Court
of
Appeal
has
held
that,
in
Canada,
carrying
on
business
with
a
view
to
profit
is
an
important
element
in
determining
whether
a
person
qualifies
as
a
partner.
Absent
this
element,
there
is
no
partnership
for
the
purposes
of
the
Act.
The
learned
Tax
Court
Judge
found
that
the
taking
of
assignments
of
partnership
interests
did
not
assist
the
Canadians.
The
fact
that
the
Commons
was
a
limited
partnership
and
that
there
was
technical
compliance
with
the
requirements
of
the
applicable
Texas
statute
could
not
overcome
the
fact
that
the
definition
of
partnership
was
not
satisfied.
At
page
37
he
states:
It
was
argued
by
appellant’s
counsel
that
the
Canadians,
unlike
the
taxpayers
in
Continental
Bank,
did
not
create
the
partnership
but
acquired
interests
in
an
existing
partnership.
This
distinction
does
not
assist
the
appellant.
Even
though
the
Commons
was
a
limited
partnership
and
the
Canadians
followed
the
requirements
of
the
applicable
statute
in
acquiring
the
partnership
interests,
there
did
not
subsist
between
the
Canadians
a
relationship
for
carrying
on
a
business
with
a
view
to
profit,
the
definition
of
partnership.
The
relationship
must
exist
between
partners
whether
they
create
a
new
partnership
or
they
are
admitted
to
an
existing
partnership.
It
does
not
matter
if
the
partners
are
limited
partners
or
if
they
are
general
partners.
(iii)
The
Opposing
Views
The
crux
of
this
issue
is
whether,
when
the
Canadians
took
assignments
of
interests
in
the
Commons,
they
became
partners
in
the
Commons.
Professor
Bromberg
says
the
carrying
on
of
business
for
profit
is
irrelevant
as
there
was
no
dissolution
and
winding-up.
The
learned
Trial
Judge
was
of
the
opinion
that
the
Canadians
did
not
become
partners
in
the
Commons
because
they
were
not
carrying
on
business
for
profit,
a
requirement
of
the
definition
of
partnership.
(iv)
The
Relevant
Law
The
Commons
was
a
limited
partnership
registered
in
Texas.
The
applicable
law
is
that
of
the
State
of
Texas.
In
Spire
Freezers
Ltd.
v.
R.,
Court
File
A-899-97
F.C.A.
May
25,
1999,
[reported,
[1999]
3
C.T.C.
476
(Fed.
C.A.)]
Linden
JA.
for
the
majority
wrote
at
paragraph
19
of
his
reasons:
Since
the
Income
Tax
Act
does
not
define
partnership,
the
law
of
the
jurisdiction
involved
is
the
basis
on
which
any
claim
of
partnership
must
be
founded.
In
that
case,
the
jurisdiction
was
California.
Robertson
JA.,
at
paragraph
20
of
his
reasons
in
dissent,
refers
to
the
decision
of
the
Tax
Court
Judge
to
the
same
effect:
The
Tax
Court
Judge
acknowledged
that
the
creation
and
dissolution
of
the
partnership
had
to
be
determined
by
reference
to
California
law.
See
also
Couzin,
“The
Law
of
Partnership
and
The
Taxation
of
Partners”
in
Partnership
Taxation
(Insight
Press,
1989)
at
page
1
and
Dale
v.
R.
(1997),
97
D.T.C.
5252
(Fed.
C.A.),
at
5255
(Per
Robertson
J.A)..
It
is
therefore
necessary
to
determine
the
question
of
whether
the
Canadians
were
partners
in
the
Commons
according
to
the
law
of
Texas.
(v)
Evidence
of
Texas
Law
Professor
Bromberg’s
opinion
is
that
there
was
no
dissolution
of
the
Commons
and
as
all
documentary
and
procedural
requirements
were
met,
the
Canadians
became
partners
in
the
Commons.
On
the
question
of
compliance
with
the
definition
of
partnership
and
whether
compliance
is
necessary
in
Texas
for
a
person
to
be
considered
a
partner,
there
is
little
evidence.
Professor
Bromberg
does
not
address
the
issue
in
his
main
opinion.
It
appears
the
issue
came
up
between
counsel
and
by
letter
dated
January
8,
1997,
appellant’s
counsel
wrote
respondent’s
counsel
advising:
You
had
asked
me
to
enquire
of
Mr.
Bromberg
whether,
in
formulating
his
opinion,
he
considered
whether
the
partnership
had
a
reasonable
expectation
of
profit.
Mr.
Bromberg
advises
that
he
did
not
put
his
mind
to
the
question
because
this
was
not
a
relevant
consideration
in
arriving
at
his
opinion.
It
is
not
entirely
clear
why
Professor
Bromberg
considered
the
business
for
profit
test
to
be
irrelevant.
One
possibility
is
that
in
his
view,
it
simply
is
not
a
requirement
that
limited
partnerships
meet
the
definition
of
partnership
in
the
Texas
Uniform
Partnership
Act.
A
second
is
that
compliance
with
the
definition
is
required
upon
creation
of
a
limited
partnership
but
not
thereafter
on
a
continuous
basis.
If
so,
persons
may
become
partners
by
admission
or
the
taking
of
assignments
from
former
partners
even
if
they
are
not
carrying
on
business
in
common
for
profit.
A
third
is
that
the
facts
pertaining
to
the
issue
were
not
placed
before
Professor
Bromberg
when
he
formulated
his
opinion.
There
may
be
other
reasons
why
Professor
Bromberg
did
not
consider
the
issue
relevant.
However,
the
case
before
this
Court
turns
on
this
very
issue.
Even
in
Canadian
law,
resolution
of
the
issue
is
not
obvious.
The
Trial
Judge
in
this
case
came
to
the
conclusion
that
compliance
with
the
definition
was
a
requirement.
In
Central
Supply
Co.
(1972)
Ltd.
v.
R.,
[1995]
2
C.T.C.
2320
(T.C.C.),
Bell
J.
came
to
the
opposite
conclusion.
I
am
unable
to
say,
from
the
evidence
of
Texas
law
in
the
record
before
this
Court,
whether
compliance
with
the
definition
of
partnership
in
the
Texas
Uniform
Partnership
Act
was
or
was
not
a
requirement
when
the
Canadians
took
assignments
of
interests
in
the
Commons.
Even
if
Professor
Bromberg’s
opinion
could
be
construed
to
the
effect
that
compliance
with
the
definition
was
not
a
requirement
under
Texas
law,
the
explanation
provided
is
far
from
sufficient
for
the
opinion
to
be
accorded
significant
weight.
I
acknowledge
Professor
Bromberg’s
reference
in
his
main
opinion
to
provisions
of
the
Texas
Uniform
Partnership
Act
and
Texas
Uniform
Limited
Partnership
Act
which
support
his
conclusion
that
once
created,
a
limited
partnership
remains
in
existence
despite
changes
in
its
operation,
members
or
stated
business
until
dissolved,
wound-up,
and
terminated.
However,
what
we
have
here
is
something
different
than
a
change
of
operation,
membership
or
stated
business.
In
the
case
at
bar,
we
have
an
unusual
situation,
persons
purporting
to
become
general
and
limited
partners
but
not
carrying
on
as
co-owners
of
a
business
for
profit.
Therefore,
it
is
a
legitimate
inquiry
as
to
whether
under
Texas
law,
a
new
person
may
become
a
general
or
limited
partner
and
whether
a
limited
partnership
continues
to
exist
when
there
is
noncompliance
by
the
new
persons
with
the
definition
of
partner-
ship.
The
answer
to
this
question
may
be
implicit
in
Professor
Bromberg’s
opinion.
However,
for
this
Court
to
accept
that
Texas
law
does
not
require
compliance
with
the
definition
of
partnership
in
the
circumstances
of
this
case,
obliges
the
expert
to
provide
more
than
has
been
provided
here.
I
think
the
words
of
Mahoney
J.A.
in
R.
v.
Capitol
Life
Insurance
€0.
are
apt
in
these
circumstances:
...the
witness
in
that
case
[Westgate
v.
Harris,
[1929]
4
D.L.R.
643
(Ont.
C.A.)],
in
the
course
of
oral
examination,
expressed
a
conclusion
without
reasons
or
authority
supporting
it.
In
context,
the
court
has
said
no
more
than
what
is
straight
law:
the
weight
to
be
given
expert
evidence
is
a
matter
for
the
trier
of
fact
and
an
expert’s
conclusion
which
is
not
appropriately
explained
and
supported
may
properly
be
given
no
weight
at
all.
A
lawyer’s
bare
opinion,
without
supporting
and
explanatory
references
to
legislation
and
decisions,
is
no
more
likely
to
prove
foreign
law
to
the
satisfaction
of
the
Court
than,
for
example,
the
bare
opinion
of
a
land
appraiser,
without
reference
to
comparable
properties
and
transactions,
will
satisfy
it
as
to
the
value
of
a
parcel
of
land.
On
the
basis
of
the
evidence
of
Texas
law
provided
by
Professor
Bromberg,
I
am
not
prepared
to
conclude
that
Texas
law
does
or
does
not
recognize
that
a
previously
valid
limited
partnership
in
which
general
and
limited
partnership
interests
have
been
assigned
to
persons
who
are
not
carrying
on
as
co-owners
of
a
business
for
profit
continues
as
a
partnership,
or
that
the
assignees
have
become
partners.
(vi)
Application
of
Canadian
Law
in
Lieu
of
Proof
Where
foreign
law
is
relevant
to
a
case,
it
is
a
question
of
fact
which
must
be
specifically
pleaded
and
proved
to
the
satisfaction
of
the
Court.
Professor
J.-G.
Castel
has
summarized
the
effect
of
the
failure
of
a
party
to
establish
foreign
law
as
a
fact
before
the
Court:
If
foreign
law
is
not
pleaded
and
proved
or
is
insufficiently
proved,
it
is
assumed
to
be
the
same
as
the
lex
fori.
This
seems
to
include
statutes
as
well
as
the
law
established
by
judicial
decision.
Professor
Castel
acknowledges
that
some
Canadian
courts
have
been
reluctant
to
apply
the
presumption
that
the
law
of
the
foreign
jurisdiction
is
the
same
as
that
of
the
forum,
where
the
law
of
the
forum
is
a
statute.
However
in
“Mercury
Bell”
(The)
v.
Amosin,
Marceau
J.A.
held
that
the
salient
distinction
is
not
whether
the
law
of
the
forum
is
statutory
or
common
law:
What
has
appeared
constant
to
me,
however,
in
reading
the
cases,
is
the
reluctance
of
the
judges
to
dispose
of
litigation
involving
foreign
people
and
foreign
law
on
the
basis
of
provisions
of
our
legislation
peculiar
to
local
situations
or
linked
to
local
conditions
or
establishing
regulatory
requirements.
Such
reluctance
recognizes
a
distinction
between
substantive
provisions
of
a
general
character
and
others
of
a
localized
or
regulatory
character;
this
distinction,
a
distinction,
formally
endorsed
I
think
by
Cartwright
J.
in
the
two
passages
I
have
just
quoted,
is
wholly
rational
which
is
more
than
can
be
said
of
a
simple
division
between
common
law
and
statute
law
J
5
[emphasis
added]
In
a
separate
concurring
opinion,
Hugessen
J.A.
observed
that
even
at
the
time
when
the
preponderance
of
English
law
was
judge-made,
it
was
doubtful
that
it
would
have
been
argued
that
a
statute
of
general
application
should
not
come
within
the
rule
of
presumption:
My
second
observation
relates
to
the
suggestion,
in
some
of
the
authorities,
that
the
application
of
the
/ex
fori
is
limited
to
the
common
law
as
settled
by
judicial
decisions
and
excludes
all
statutory
provisions.
Here
again
I
think
the
expressions
of
the
rule
have
been
coloured
by
the
historical
context
and
go
back
to
a
time
when
the
great
body
of
English
law
was
judge-made;
statutes
were
creatures
of
exception,
outside
the
general
body
of
the
law.
Even
at
that
time,
however,
1
doubt
that
it
would
seriously
have
been
argued
that
a
statute
of
general
application
such
as,
for
example,
the
Bills
of
Exchange
Act
should
be
overlooked,
so
as
to
oblige
the
court
to
search
in
the
obscurities
of
history
to
determine
the
state
of
the
law
prior
to
its
enactment.
The
proper
expression
of
the
rule,
as
it
seems
to
me,
is
that
the
court
will
apply
only
those
parts
of
the
lex
fori
which
form
part
of
the
general
law
of
the
country.
I
think
that
legislation
with
respect
to
partnerships
is
such
an
example
of
statutory
law
of
general
application.
There
is
nothing
intrinsically
local
or
particular
with
respect
to
partnerships,
and
there
is
considerable
uniformity
in
this
area
of
law
across
jurisdictions.
Here,
the
relevant
Canadian
law
is
the
law
of
Alberta,
specifically
the
Alberta
Partnership
Act,
supra.
Alberta
is
the
province
in
which
the
appel-
lant
works
and
resides
and
in
which
the
Commons
was
registered
as
a
limited
partnership
.
(vii)
Does
the
definition
apply
to
limited
partnerships?
As
I
previously
indicated
on
the
issue
of
compliance
with
the
statutory
definition,
the
jurisprudence
in
the
Tax
Court
is
divided.
In
this
case,
the
Trial
Judge
found
that
compliance
with
the
definition
was
necessary
in
order
for
a
partnership
to
exist.
In
Central
Supply
Co.
(1972)
Ltd.,
Bell
J.
came
to
the
opposite
conclusion:
Counsel
for
the
respondent
admitted
the
validity
of
the
partnerships
at
the
outset.
There
is
no
pleading
and
he
made
no
submission
to
the
effect
that
they
had
ceased
to
exist
yet
he
argued
that
the
appellants
could
not
become
partners
because
there
was
no
longer
a
possibility
of
profit
when
they
arrived
on
the
scene.
The
appellants
did
not
form
the
partnerships.
They
complied
with
the
statutory
requirements
to
become
members
thereof
at
a
later
date.
How
can
a
person
be
said
to
be
unable
to
become
a
member
of
an
extant
partnership
when
that
person
did
everything
required
by
the
very
legislation
by
virtue
of
which
it
was
created,
in
order
to
become
a
member?
With
respect
to
the
reference
to
Lindley,
supra,
it
is
my
view
that
the
words
quoted
must
be
read
in
the
context
of
the
limited
partnership
provisions
of
the
Partnership
Act
of
Alberta
and
in
the
context
of
a
specific
provision
in
the
Act
allocating
deductible
expenses
to
a
taxpayer
who
is
a
member
of
a
partnership
at
the
end
of
its
fiscal
period
and
in
the
context
of
the
use
of
such
partnerships
as
funding
vehicles
created
pursuant
to
government
incentives
in
the
oil
and
gas
business.
I
Part
2
of
the
Alberta
Partnership
Act
is
entitled
“Limited
Partnerships”.
Section
48
provides:
This
Act
shall,
in
the
case
of
limited
partnerships,
be
read
subject
to
this
Part.
I
read
section
48
to
say
that
the
entire
Partnership
Act
applies
to
limited
partnerships
but
other
provisions
of
the
Act
will
be
read
subject
to
Part
2.
In
other
words,
other
provisions
of
the
Partnership
Act
will
apply
to
limited
partnerships
but
may
be
displaced
or
modified
by
provisions
in
Part
2.
Is
there
anything
in
Part
2
that
displaces
or
modifies
the
definition
of
partnership
in
section
I
of
the
Act?
I
would
first
observe
that
section
1
of
the
Act
precedes
Part
1
Ordinary
Partnerships,
Part
2
Limited
Partnerships,
and
Part
3
General.
I
infer
that
the
intention
of
the
legislature
was
that
the
definition
apply
to
all
parts
of
the
Act
and
all
partnerships.
Specific
provisions
in
Part
2
also
lead
to
the
conclusion
that
the
definition
applies
to
limited
partnerships.
Subsection
50(1)
provides
that
a
limited
partnership
may
be
formed
to
carry
on
any
business
that
an
ordinary
partnership
may
carry
on.
A
limited
partnership
may,
subject
to
this
Part,
be
formed
to
carry
on
any
business
that
a
partnership
without
limited
partners
may
carry
on.
It
is
thus
explicit
that
a
limited
partnership
may
be
formed
to
carry
on
a
business.
There
is
no
indication
that
a
limited
partnership
may
be
formed
for
any
other
reason.
Subsection
51(1)
provides
that
a
limited
partnership
is
formed
when
a
certificate
substantially
complying
with
subsection
51(2)
is
filed
with
and
recorded
by
the
Registrar.
Paragraphs
51
(2)(b)
and
(h)
provide:
A
certificate
shall
be
signed
by
all
the
persons
desiring
to
form
a
limited
partnership
and
shall
state
(b)
the
character
of
the
business,
(h)
the
share
of
the
profits
or
other
compensation
by
way
of
income
which
each
limited
partner
is
entitled
to
by
reason
of
his
contribution.
Again,
the
legislation
providing
for
the
certificate
anticipates
that
the
limited
partnership
will
carry
on
a
business
and
that
the
limited
partnership
will
produce
profits
or
other
compensation
by
way
of
income.
These
are
conditions
that
are
consistent
with
the
definition
of
partnership.
Under
section
63,
a
limited
partner
loses
his
limited
liability
if
he
takes
part
in
the
control
of
the
business.
In
Central
Supply
Co.
(1972)
Ltd.,
supra,
it
was
argued
that
this
section
implies
that
a
limited
partner
is
not
expected
to
carry
on
business
in
the
sense
required
by
the
definition
of
partnership
in
the
Act.
I
do
not
agree.
Section
63
provides:
A
limited
partner
does
not
become
liable
as
a
general
partner
unless,
in
addition
to
exercising
his
rights
and
powers
as
a
limited
partner,
he
takes
part
in
the
control
of
the
business.
In
the
ordinary
case,
a
limited
partnership
will
consist
of
a
general
partner
that
will
control
the
business
and
limited
partners
who
will
have
made
financial
or
other
contributions
but
who
will
not
be
actively
involved
in
the
business.
However,
that
obviously
does
not
mean
that
the
limited
partner
ship
is
not
carrying
on
a
business.
The
business
is
being
carried
on
in
common
by
all
the
partners,
but
is
controlled
by
the
general
partner.
Having
regard
to
the
application
of
section
1
to
the
entire
Act
and
the
provisions
in
Part
2
which
refer
to
the
carrying
on
of
business
and
the
sharing
of
profits
by
way
of
income,
I
conclude
that
the
definition
of
partnership
and,
in
particular,
the
requirement
that
a
relationship
subsist
between
persons
carrying
on
a
business
in
common
with
a
view
to
profit,
applies
to
limited
partnerships.
(viii)
Does
the
Taking
of
Assignments
Obviate
the
Need
to
Comply
With
the
Definition
?
Does
the
fact
that
persons
purport
to
become
partners
by
way
of
assignment
of
partnership
interests
in
a
previously
existing
valid
limited
partnership
mean
that
there
need
not
be
compliance
with
the
definition?
I
do
not
think
so.
Any
other
conclusion
would
result
in
the
inconsistency
that
a
newly
created
limited
partnership
must
comply
with
the
definition,
while
a
previously
created
valid
limited
partnership
that
no
longer
has
the
attributes
of
the
definition
need
not
comply.
I
am
unable
to
rationalize
that
inconsistency.
Of
course,
the
requirement
to
comply
with
the
definition
does
not
mean
that
a
limited
partnership
loses
its
character
as
a
partnership
because
of
periodic
or
short-term
losses.
The
definition
looks
to
whether
the
business
is
being
carried
on
with
a
view
to
profit
and
as
long
as
there
is
such
view
to
profit
,
the
definition
is
satisfied.
The
situation
was
expressly
dealt
with
in
Lindley
&
Banks,
16th
edition,
at
paragraph
2.05:
However,
it
is
apprehended
that
if
any
“partner”
entered
the
partnership
solely
with
a
view
to
being
credited
with
a
tax
loss
(or,
formerly,
a
capital
allowance),
and
it
was
contemplated
from
the
outset
that,
whilst
he
remained
a
member
of
the
firm,
no
profits
(in
the
sense
of
net
gains)
would
be
derived
from
carrying
on
its
business,
he
could
not
be
said
to
have
the
requisite
“view
of
profit”
to
qualify
as
a
partner.
This
passage
addresses
the
facts
of
the
case
before
this
Court.
The
appellant
entered
the
Commons,
according
to
the
learned
trial
judge,
solely
with
a
view
to
acquiring
a
tax
loss.
Accordingly,
he
would
not
qualify
as
a
partner.
In
paragraph
2.05
of
Lindley
&
Banks
17th
edition,
the
words
used
by
the
author
quoted
above
have
been
changed:
If,
however,
it
could
be
shown
that
the
sole
reason
for
the
creation
of
a
partnership
was
to
give
a
particular
partner
the
“benefit”
of,
say,
a
tax
loss,
when
there
was
no
contemplation
in
the
parties’
minds
that
a
profit
(in
the
sense
outlined
above)
would
be
derived
from
carrying
on
the
relevant
business,
the
partnership
could
not
in
any
real
sense
be
said
to
have
been
formed
“with
a
view
of
profit”.
The
appellant
says
the
change
in
wording
between
the
16th
and
17th
editions
is
significant,
because
it
focuses
on
the
creation
of
a
partnership
rather
than
the
entry
of
a
partner
into
a
partnership
and
that
the
requirement
to
comply
with
the
definition
is
confined
to
the
creation
of
the
partnerships.
With
respect,
I
think
the
import
of
the
words
in
the
17th
edition
is
the
same
as
in
the
16th
edition.
This
passage
appears
to
in
Part
One
under
the
title
“The
Nature
of
Partnership”.
It
is
dealing
with
partnerships
in
general.
While
the
reference
in
the
17th
edition
is
to
the
creation
of
a
partnership,
when
considering
partnerships
generally,
the
entry
of
new
persons
and
the
departure
of
existing
partners
will
be
considered
to
constitute
the
creation
of
a
new
partnership,
provided
of
course,
that
the
requisite
components
of
the
definition
of
partnership
are
satisfied.
At
paragraph
3.04
of
Lindley
&
Banks,
17th
edition,
the
following
is
stated:
Lord
Lindley
stated
the
orthodox
legal
view
as
follows:
The
law,
ignoring
the
firm,
looks
to
the
partners
composing
it;
any
change
amongst
them
destroys
the
identity
of
the
firm;
what
is
called
the
property
of
the
firm
is
their
property,
and
what
are
called
the
debts
and
liabilities
of
the
firm
are
their
debts
and
their
liabilities.
I
think
the
words
at
paragraph
2.05
of
the
17th
edition
of
Lindley
&
Banks
must
be
read
in
this
context.
I
do
not
consider
that
the
statement
of
the
law
in
the
16th
edition
has
been
modified
in
the
17th
edition.
The
limited
partnership
provisions
of
the
Act
do
provide
for
the
assignability
of
limited
partnership
interests
and
the
substitution
of
limited
partners.
(Section
65.)
However,
I
do
not
read
these
provisions
as
giving
the
limited
partnership
some
type
of
existence
independent
of
the
requirement
to
comply
with
the
definition
of
partnership.
I
see
nothing
in
the
limited
partnership
provisions
of
Part
2
that
renders
the
definition
of
partnership
inapplicable
to
limited
partnerships
or
that
sug-
gest
that
compliance
with
the
definition
is
only
applicable
when
a
new
limited
partnership
is
created
but
not
when
partnership
interests
are
subsequently
acquired.
Conclusion
Although
the
Canadians
purported
to
become
general
partners
in
the
Commons,
they
were
not
in
a
relationship
of
carrying
on
a
business
in
common
with
a
view
to
profit.
Accordingly,
they
did
not
become
general
partners
in
the
Commons.
Section
66
of
the
Alberta
Partnership
Act
provides
that
a
limited
partnership
is
dissolved
with
the
retirement
of
a
general
partner
unless
the
business
is
continued
by
the
remaining
general
partners.
Section
66
contemplates
that
there
be
remaining
general
partners
to
continue
the
business.
Section
66
provides:
The
retirement,
death
or
mental
incompetence
of
a
general
partner
dissolves
a
limited
partnership
unless
the
business
is
continued
by
the
remaining
general
partners
(a)
pursuant
to
a
right
to
do
so
stated
in
the
certificate,
or
(b)
with
the
consent
of
all
the
remaining
partners.
When
the
Americans
assigned
their
interests
in
the
Commons
to
the
Canadians
and
withdrew
from
the
Commons,
there
was
no
remaining
general
partner
to
continue
any
business
of
the
Commons.
What
occurred
here
was
the
dissolution
of
the
Commons
with
the
withdrawal
of
the
Americans
as
general
partners.
At
that
point,
the
Commons
became
nothing
more
than
a
collection
of
co-owners
of
property.
I
conclude
that
the
appellant
was
not
a
partner
in
a
partnership
when
the
Commons
disposed
of
the
Dallas
Apartment
Complex.
The
appeal
will
be
dismissed
with
costs.
Appeal
dismissed.