Sommerer - Federal Court of Appeal finds that the exemption in the Canada-Austrian treaty for gains realized by an Austrian alienator prevents the attribution of those gains to Canada

In the Sommerer case referred to below, Sharlow JA also found obiter that the gains exemption article in the Canada-Austrian treaty would have precluded the application of  a Canadian domestic gains attribution rule (s. 75(2)) to the Canadian taxpayer in that case even though the person invoking the exemption was that Canadian resident rather than the Austrian alienator (i.e., an Austrian foundation) of the Canadian shares giving rise to the attributed gain.  She found that preventing "economic" double taxation as in this situation was within the intended general purview of the treaty.

Neal Armstrong.  Summary of Sommerer v. The Queen, 2012 FCA 207 under Treaties - Article 13 and Treaties- General.