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Jagot J (speaking for the majority) found for the Commissioner (i.e., no rollover relief to Mr Ellison) partly on the basis of her doubts that there had been such a prior transfer (concluding that “the orders vested statutory rights and a beneficial interest of some kind in Ms Ellison but … I do not consider that interest can be characterised as beneficial ownership.”) ... She made a guarded finding that a person could have a proprietary interest in a specified portion of a larger pool of fungible assets, stating: [T]he weight of authority is that there can be a valid trust over a fungible pool of assets provided the assets and relevant proportions for the different beneficiaries are identified with sufficient certainty. … If, given the terms of the declaration and the nature of the property, the trustee is constituted as nothing more than a bare trustee on behalf of the beneficiary in respect of the beneficiary’s proportional interest, it may well be that there has been a change of ownership …. ... Summary of Ellison v Sandini Pty Ltd [2018] FCAFC 44 under General Concepts – Ownership, s. 248(1) – disposition, s. 73(1)(b) and General Concepts – Evidence. ...

18 February 2021- 11:40pm Paletta – Tax Court of Canada decision supports the offsetting of almost $200M in taxable income through straddle trades Email this Content The taxpayer in Friedberg entered into spread positions in gold futures contracts, and in the same taxation year closed out the losing legs on his straddle positions (while entering into further contracts to maintain his hedged position) but deferred closing out the remaining contracts until the subsequent taxation year. ... In finding that the taxpayer’s claimed losses (except for an $8 million overstatement of the 2002 loss due to an “egregious error” – for which a gross negligence penalty was sustained) were fully deductible, Spiro J noted: “ Friedberg stands for the proposition that straddle traders may report the results of their trades for tax purposes on a [realization] basis that does not reflect the true economic results of such trades.” ... The Queen, 2021 TCC 11 under s. 9 – timing, General Concepts – Sham and s. 163(2). ...

20 April 2018- 12:20am Travel Document Service – Court of Appeal of England and Wales finds that an anti-avoidance provision based on “one of the main purposes” for holding a loan applied to a deemed loan Email this Content A British taxpayer (TDS) used a total return swap to cause its share investment in a subsidiary (LGI) to be deemed to be a loan. ... He also rejected HMRC’s submission that "’main’ … means ‘more than trivial’," stating: A purpose can be "more than trivial" without being a "main" purpose. ... Summaries of Travel Document Service & Ladbroke Group International v Revenue & Customs (Rev 1) [2018] EWCA Civ 549 under Statutory Interpretation – Interpretation Provisions and s. 83(2.1). ...

27 November 2016- 10:54pm Francoeur – Cour du Québec finds that a somewhat quick flip by a builder was eligible for the principal residence exemption Email this Content Aubé, JCQ found that an entrepreneur who had followed a pattern of building and selling residences, realized a capital gain eligible for the principal residence exemption where he built a home to the exacting requirements of his spouse, and then sold it at a gain somewhat over three years after having purchased the vacant lot. ... F. stated that… his lines of credit had reached their limit. … Although Mr. ... Agence du revenu du Québec, 2016 QCCQ 11906 under s. 9 – capital gain v. profit – real estate. ...

9 November 2016- 11:18pm Mazo – Tax Court of Canada finds that successful participation in a pyramid scheme gives rise to business income Email this Content Graham J found that whereas successful participation in a Ponzi scheme gives rise to property income, successful participation in a pyramid scheme gives rise to business income. ... The Queen, 2016 TCC 232 under s. 248(1) – business and s. 9 – timing. ...

7 May 2017- 5:21pm Foote – Tax Court of Canada finds that a senior stock broker realized gains on a small personal portfolio on income account Email this Content The co-head of institutional trading at a full-service brokerage, who engaged in active stock trading in his personal account for the last 10 months of 2009 (with an average hold period of about 50 days), was found by Boyle J to have realized his gains on income account, notwithstanding the relatively small size of his portfolio (starting at $650,000) relative to his employment income, and the fact that he significantly underperformed the stock market. ... The Queen, 2017 TCC 61 under s. 9 – capital gain v. profit – shares. ...

30 April 2020- 11:15pm Piché – Court of Quebec finds that a family realized capital gains from the sale of 3 newly-constructed residences in 3 years Email this Content A closely-knit family, who collectively constructed and sold three single family residences over the course of three years without reporting anything on their returns, and were assessed by the ARQ for having realized gains from adventures in the nature of trade, were able to come up with convincing stories as to how, due to various “vicissitudes” and unexpected twists and turns in their personal lives, all that had occurred. ... Agence du revenu du Québec, 2020 QCCQ 1283 under s. 9 – capital gain v. profit – real estate. ...

4 August 2020- 11:15pm Chevalier – Court of Quebec finds that the subdivision of a residential land into around 30 serviced building lots by the purchaser-developer did not scupper capital gains treatment Email this Content An individual who had held property for her personal residential use, was approached by a housing developer, who agreed to purchase her land on the basis that it would acquire around 30 fully-serviced building lots, with it doing all the work to make this subdivision and addition of the services happen. ... Agence du revenu du Québec, 2020 QCCQ 2220 under s. 9 – capital gain v. profit – real estate. ...

13 October 2020- 11:49pm Van der Steen – Federal Court of Appeal confirms lack of donative intent for an alleged donation Email this Content The taxpayer, a lawyer, withdrew $100,000 from his RRSP and “contributed” an amount exceeding the withdrawal amount (and well in excess of the net withdrawal amount after giving effect to source deductions) to a registered charity. ... Canada, 2020 FCA 168 under General Concepts – Onus and s. 118.1(1) – total charitable gifts. ...

25 February 2021- 11:21pm Ouellette – Court of Quebec finds that the quick (re)building and sale of three successive residences was eligible for the principal residence exemption Email this Content A couple (one of them, a carpenter), who successively substantially renovated or built, and sold, three homes, with the sales occurring over a four-year period, realized capital gains eligible for the principal residence exemption on such sales, rather than fully taxable business profits. ... Agence du revenu du Québec, 2020 QCCQ 8765 under s. 9 – capital gain v. profit – real estate. ...