27 March 1990 Internal T.I. 74729 F - Gifts Qualifying as Charitable Donations

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.

Subject:  24(1)

This is in reply to your fax of February 16, 1990 from  24(1) and your request that we respond to point five of that fax

24(1)

However, upon reflection and as pointed out by  24(1) we agree that the judgement in the Bronfman case concluded that it is preferable to look to the direct use of the funds rather than the remote, indirect use, unless the supposed direct use is a formality or a sham designed to conceal the essence of the transaction.

24(1)

21(1)(a)

Under the circumstances no good purpose would be achieved by meeting with  24(1) representatives. 

21(1)(b)

Should you wish to pursue the matte we can only suggest that you attempt to determine if the donations were in fact rue "gifts". As you are aware, a gift is a voluntary and gratuitous transfer of real or personal property without consideration.  No right, privilege, material benefit or advantage may accrue to the donor or to the person designated by the donor.  In order for the "gift" to qualify as a charitable donation, it must be made entirely separate and unrelated to any subsequent use.  Decisions regarding specific beneficiaries of one of its established programs must be the exclusive responsibility of the charity.

If you could demonstrate that the foregoing was not the case you could disallow the claims for charitable donations.

We were also going to suggest that you refer to the matter of the Foundation's  status to R.J. MacDonald of Charities Registration Division for audit, however I am informed that audits have already taken place.

In closing, it has been suggested that you may wish to consider the application of the GAAR provisions to this and similar situations where the transactions were entered into on or after September 13, 1988.

We trust our comments will be of assistance in this matter and apologize for any inconvenience resulting from our earlier letter.

for DirectorBusiness and General DivisionSpecialty Rulings DirectorateLegislative and Intergovernmental Affairs Branch