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., drivers) and intercorporate loans – and entered into cross-currency and interest rate swaps with an arm’s length bank to effectively convert much of its income stream into fixed rated Canadian-dollar interest. ... After noting (at para. 55) that the Canadian Pioneer case ([1980] 1 S.C.R) had found that the meaning of “banking … should be based on a formal, institutional approach rather than a substantive approach, in the sense of the functions of banking” so “that the use of the term ‘bank’ in the name of the entity, and whether it is regulated, are factors to be considered, rather than the actual activities that are conducted”, Woods JA found that the Tax Court had erred in finding that there was an implied requirement in “banking” that the receipt side of the business have an element of competition and that “the exclusion does not apply if a business simply manages its own funds “ (para. 57) and, indeed “Parliament has not explicitly required competition as an element of the foreign bank exclusion” para. 60). ... In finding that the receipt side i.e., “the capital investments by the Loblaw group [,] were not part of Glenhuron’s conduct of business” she stated (at paras. 84-85): Applying the meaning of “business,” there is no reason to conclude that the capital invested by the Loblaw group would have occupied the time and attention of Glenhuron in any meaningful way. … [T]his approach is consistent with long-standing jurisprudence which draws a distinction between “capital to enable [people] to conduct their enterprises” and “the activities by which they earn their income” …. ...

. … In this appeal, there is no dispute that the non-capital losses as claimed for the January 1992 taxation year were valid non-capital losses and could be claimed in that year. … The Minister simply did not make the adjustment as requested by Bakorp for the January 1992 taxation year. … [T]his disagreement between Bakorp and the Minister in relation to the application of subsection 152(4.3) of the Act in this case should have been resolved by Bakorp making an application to the Federal Court for judicial review of this decision of the Minister. … Since Bakorp did not seek judicial review of the decision of the Minister, this decision to not make the adjustments for the January 1992 taxation year stands. ...

She recognized that First Vancouver had found that this deemed trust did not apply to “ bona fide purchasers for value” of the tax debtor’s property (so that the trust attached to the sales proceeds rather than following the sold property) – but found that this exception did not apply to the payment of the sales proceeds to the Bank as a secured creditor. The Bank’s mortgage was not excluded (under ETA s. 222(4) – similar to ITA s. 227(4.2)) as a “prescribed security interest” from the deemed trust rule because it was registered after the deemed trust arose in the tax debtor’s hands. Respecting the implications of this decision, she stated (at para. 85): [S]ecured lenders … may identify higher risk borrowers (which might include persons operating sole proprietorships), require borrowers to give evidence of tax compliance, or require borrowers to provide authorization to allow the lender to verify with the Canada Revenue Agency whether there are outstanding GST liabilities then known to the Agency. ...

ITA 231.2(3) and ETA s. 289(3) for Roofmart to disclose various particulars for all of its customers who in the past 4 ½ years had made purchases of construction materials from Roofmart exceeding specified thresholds. ... Blackmore. … The notice of application is signed by counsel for the Attorney General, who is referred to in the notice of application as “counsel for the applicant”, with the applicant clearly stated as being the Minister.... Roofmart’s argument confounds the authority to bring the application, which rests with the Minister or their delegate, with the role of the person who swore the affidavit filed in support of the Minister’s application. … The fact that Mr. ...

She further stated (at paras. 54, 56 and 62-63): The Impugned Provisions are clearly regulatory in nature … [and] are similar to information automatically provided to the CRA for regulatory purposes (e.g., T4s by employers, T5s by financial institutions, and taxpayers’ annual disclosure of foreign holdings). … It is difficult to see how a seizure contemplated by the Impugned Provisions significantly intrudes into privacy interests, as the appellants appear to suggest. Accordingly, I see no reason in this case to revisit the comment in Jarvis that the entire ITA is a regulatory statute. … Quite simply, the Impugned Provisions are an example of international cooperation in the administration of income tax laws. … Moreover, the appellants have not demonstrated that the Impugned Provisions are more intrusive than is necessary to be effective, or that Canada could have achieved a more favourable outcome for affected persons. ...

Canada (National Revenue), 2021 FCA 101-- summary under Stare Decisis Summary Under Tax Topics- General Concepts- Stare Decisis stare decisis does not apply horizontally In connection with finding that there is no reversible error of a Federal Court judge in not following a prior decision of a colleague, Pelletier JA stated (at paras. 30-31): … Judicial comity is a doctrine which seeks to promote uniformity and predictability in the law. Litigants and appellate courts expect that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why. … But the failure to do so, or to do it convincingly, while regrettable, is not a basis for appellate intervention. As a result, the use of the expression “horizontal stare decisis ” to refer to judicial comity is misleading precisely because judicial comity is not enforced by courts of appeal while stare decisis is. ...

The … distinctions made by the regulations based on the area of voyages taken cannot be supported by the bare language of the section …. ... Either the Court can sever and annul the impugned portion where it can be determined that that portion was intended by the legislator to be cumulative, not dependent on other provisions, and was "enacted distributively and not with the intention that either all or none should come into force" …. ... However, he concluded (at para. 41) that “for the same rationale as prevailed in Schachter [[1992] 2 S.C.R. 679], the best solution would appear to be a delayed declaration of the invalidity of the Ships Stores Regulations ” so as to “enable the Governor in Council to devise a scheme which is legally defensible given the terms of its regulation-making authority under the Excise Tax Act.” ...

. … [T]he use of the phrase “directly or indirectly” evidences Parliament’s intent “to capture any and all methods through which a transaction could increase” the fair market value of a TFSA The TCC had allowed the appeals for the 2010 and 2012 taxations years on the basis that the phrase “directly or indirectly” in s. 207.01(1)(b) should be narrowly interpreted; and that the increase in the fair market value of the TFSA in 2010 and in 2012 was not attributable to the swap transactions, but rather to favourable market conditions in those years. In allowing the Crown’s cross-appeal for those years, Dawson JA stated (at paras 75, 77 and 82): [T]he Tax Court’s concern about “when or how far into the future an advantage … will be considered as attributable to” abusive transactions did not justify a restrictive interpretation of the definition of advantage. … The ability to waive an advantage tax and reset an individual’s unused TFSA contribution room are the mechanisms intended to address the future impact of abusive transactions. … The anti-avoidance purpose of sections 207.01 and 207.05 supports a broad interpretation of the definition of “advantage”. … [W]hile the increase in value in the TFSA in 2010 and 2012 was directly attributable to the performance of the shares held in the TFSA each year, it was indirectly attributable to the swap transactions which increased the number of shares held in the TFSA and their value. ...

He then stated (at paras. 15-17, TaxInterpretations translation): [T]he TCC scrupulously followed the approach … required of it under Safeway. In particular, it concluded from the evidence before it that the appellant's sole motivation at the time of the acquisition of the land in question was clearly to resell it at a profit, noting in this regard that the appellant had never intended to carry out the development project desired by the City of Mascouche. … With respect to the geographic location and zoning of the lands in question, the TCC noted that they were located in close proximity to the future train station … [and] that the City of Mascouche had undertaken, in order to facilitate the implementation of the development project on the axis of such station, to modify its urban plan and by-laws, to achieve, before the end of 2007, free circulation on the land and to complete certain infrastructure work. ... Finally, the Court emphasized that the acquisition of the lands in question involved a significant commercial risk to the appellant, since the consolidation of the lots required to carry out the development desired by the City of Mascouche depended, among other things, on the expropriation of land owned by third parties …. ...

Canada, 2017 FCA 156-- summary under Paragraph 6204(1)(b) Summary Under Tax Topics- Income Tax Regulations- Regulation 6204- Subsection 6204(1)- Paragraph 6204(1)(b) employees enjoyed the ½ deduction on exercising their stock options notwithstanding an immediate sale of the acquired shares to the controlling shareholder The taxpayers were management employees of a software company (“Cybectec”), which was a wholly-owned subsidiary of a holding company (“9135-8184”). ... This shows that for the purposes of paragraph 110(1)(d) of the ITA, it is not the imposition of an holding period that ensures the existence of a risk element, but the particular characteristics of a prescribed share and the minimum price at which the option must be exercised. … [S]ubparagraph 6204(1)(a)(iv)…prevents the deduction from being claimed with respect to shares which embody an obligation to redeem. Paragraph 6204(1)(b) broadens the scope of this disqualification by extending it to situations where, for instance, an established practice makes the redemption of the shares reasonably predictable. … It seems clear that these two provisions complete one another and that the latter is intended to prevent employees from benefitting from the deduction in circumstances where they can have their shares redeemed at will…. ...