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In also intimating that a taxpayer is not to “apply” GAAR, he stated (at para. 16): Although … [Bocock J] states …that “all taxpayers, who are directly subject to GAAR assessments, that is, non-third parties, are required to consider and apply GAAR”, in my view it is more accurate to state that all taxpayers who are contemplating a transaction or series of transactions that would result in a tax benefit should consider the risk that GAAR will apply to deny the tax benefit. ... He also stated (at para. 33): … Simard-Beaudry … confirmed that “the assessment does not create the debt, but is at most a confirmation of its existence”. ...

., 2018 FCA 166-- summary under Subsection 160(1) Summary Under Tax Topics- Income Tax Act- Section 160- Subsection 160(1) stock dividend followed by redemption of the stock dividend shares effected in combination a transfer of property for no consideration Income account treatment of the profits realized by a condo-project limited partnership was avoided through the corporate partners (the Partnercos) of the partnership paying safe income dividends (out of the realized but unallocated condo profits) to their respective Holdco shareholders through the payment of stock dividends of preferred shares followed by a redemption of those preferred shares – in turn, followed by a sale by the Holdcos of the Partnercos to a public company with substantial resource pools (Nuinsco). ... After first finding that the allocation of the income to Nuinsco rather than to the Partnercos represented an abusive avoidance for purposes of s. 245(4) of ss. 96(1)(f) and 103(1), Woods JA went on to find that s. 160 would have applied to the transfer of property of the Partnercos to the Holdcos effected through the preferred share stock dividends and redemptions but for the fact that the associated tax liability did not arise until the income was allocated to an arm's length person (Nuinsco), stating (at paras. 112, 115): The stock dividends and the redemption together resulted in a transfer of cash “indirectly … by any means whatever” from Partnerco to Holdco without consideration. … Although the Algoa Trust decision deals with a cash dividend, the combination in this case of stock dividends followed by a redemption has the same effect and similarly results in a transfer of property without consideration. ...

Miller J had required the Minister to disclose a draft proposal letter in the audit file, as well as a memo dated March 8, 2004 from Income Tax Rulings Directorate Finance’s Director General, Tax Legislation (excepting portions thereof that identified another taxpayer) in which the Directorate expressed concerns regarding the scope of the restrictions on the deductibility of non-capital losses under s. 111(5) and requested an amendment to “deem an acquisition of control to occur where a person or group of persons acquire, as part of a series of transactions, a certain level of equity in a corporation […] and one of the main purposes of the series of transactions is to avoid any limitation of the deductibility of non-capital losses”. ... However, Gleason JA stated (para. 28): [T]he documents in issue are of limited relevance and likely inadmissible at trial as, under the GAAR analysis, the question of the policy in the ITA that the taxpayer is alleged to have avoided is ultimately a question of law. … Thus, while it may well be incumbent on the Minister to set out the disputed policy in the Minister’s pleadings as a matter of fairness … it does not follow that evidence on the policy will be admissible at trial as matters of law are for a court to determine. ...

(b) “near equal” test was not satisfied, Webb JA stated (at paras. 37, 41-43): … Parliament intended that "“near equal”" be interpreted as essentially or almost equal. … [A]ny percentage of time that cannot be rounded off to 50% would not qualify as near equal. … [A]ny rounding of percentages should not be restricted to rounding to the nearest percentage point but rather to the nearest whole number that is a multiple of 10 and another whole number. ...

., 2019 FCA 183-- summary under Paragraph 135(2)(a) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Excise Act, 2001- Section 135- Subsection 135(2)- Paragraph 135(2)(a) all-ingredients test applied to each alcoholic component – not to all components The respondent (Mark Anthony) produced fortified fermented ciders made from apples grown and fermented in Canada, to which was added certain other ingredients before the products were packaged, including spirits not fermented in Canada and apple juice concentrate which was not made from Canadian apples. ... Before finding that the exemption applied except (as acknowledged by Mark Anthony), in the case of the beverages that included the imported spirits, did not qualify for the exemption, Webb JA first rejected the position of the Crown that the “all ingredients” test was to be applied at the packaging rather than earlier fermentation stage, Webb JA stated (at para. 28): The Crown’s interpretation … [is] that all ingredients that are included in the packaged product must be agricultural or plant products grown in Canada, except those that are permitted to be added by the CRA, on the basis that they are “incidental”. This would result in a delegation of authority to the CRA to decide what wine will qualify for the exemption. … [I]t would not have been the intent of Parliament to implicitly delegate this authority to the CRA. ...

In affirming the finding of the Tax Court that the safe income attributable to 626 NB’s shares of Tri-Holdings was reduced by the corporate income tax that would be payable by Tri-Holdings on the income arising from the sale of the property, Webb JA first stated (at para. 39): I agree with … Deuce Holdings that it would only be logical that any arm’s length third party purchaser of shares would take into account any existing tax liability of the corporation, even though such liability may not be payable until a later date. He then stated (at paras. 52-53): Both the fair market value of the shares and the portion of the resulting capital gain that would be attributable to the income earned or realized would reflect the tax liability that, although not payable immediately, would eventually have to be paid. … This tax liability would not disappear if, as contemplated by subsection 55(2) … the shares of Tri-Holdings would have been sold immediately before the dividend in question. ...

Following the realization shortly thereafter by Newco of a taxable capital gain and recapture of depreciation on a sale of the building, Newco increased the adjusted cost base to Holdco of its shares by effecting a series of s. 84(1) dividends (including a capital dividend) – following which the individual sold his shares of Holdco to a third party for a sale price based on the amount of cash sitting in Newco. ... Respecting the mechanics of how the pre-April 20, 2015 version of s. 55(2) operated to generate a capital gain as a result of the denial of safe income, he stated (at para. 74): Paragraph 55(2)(a) … provides that the amount in issue is deemed to not be a dividend. As a result, there is no addition to the adjusted cost base of the shares for this amount under paragraph 53(1)(b) …. ...

In confirming the decision of the Federal Court to the same effect, Rennie JA stated (at para. 21): The [latter] proposal letter … is not a reviewable decision or order. … [I]t did not determine any of the taxpayer’s rights, substantive or procedural…. Before so concluding, he stated (at paras 13, 17): The Notices of Reassessment having been issued, the question whether an injunction could have issued restraining their issuance pending determination of the second-level VDP application is moot. … [T]he reassessments are valid and binding until set aside by the Tax Court…. ...

These are set out in Happy Valley Farms …. …[O]ne of the considerations that is listed as a relevant factor is the frequency or number of other similar transactions completed by the taxpayer. While it would be presumed that Atlantic Packaging would not be frequently selling off an entire division, there is no indication of whether Atlantic Packaging followed a similar pattern or similar transactions in disposing of other depreciable property. … [T]he absence of this evidence is sufficient for this Court to reject Atlantic Packaging’s argument that this new issue should be considered by this Court. The Crown has been deprived of any opportunity to explore the facts related to the frequency or number of similar transactions …. ...

Canada, 2020 FCA 118-- summary under Subsection 207.06(2) Summary Under Tax Topics- Income Tax Act- Section 207.06- Subsection 207.06(2) FCA would be prepared to consider whether any broad discretion of CRA to waive tax was unconstitutional The taxpayer, who had been assessed TFSA advantage tax under s. 207.05, and was unhappy with the amount of the tax that the Minister had ultimately offered to waive under s. 207.06, brought a Rule 58(1) application to the Tax Court, which asked whether s. 207.05 offends s. 53 of the Constitution Act, 1867 – with counsel arguing that in light of the potential waiver under s. 207.06 “the Minister sets the rate of tax, not Parliament, and this offends section 53” (para. 4). ... In describing where assistance was needed, he stated (at paras. 13-15): [A]fter a full examination of the text in light of its context and purpose, the Court might conclude that Parliament’s provision, in its authentic meaning, satisfactorily constrains the Minister’s discretion and defines what she can do and how she should do it. … But in other cases, the Court might conclude that Parliament’s provision, in its authentic meaning, gives the Minister an unconstrained, undefined discretion without criteria. ... They would not fix the fatal problem: Parliament’s over-delegation of taxation power in the first place contrary to section 53 …. ...