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Canada, 2018 FCA 110-- summary under Subsection 152(4.2) Summary Under Tax Topics- Income Tax Act- Section 152- Subsection 152(4.2) s. 152(4.2) inapplicable where reassessment, albeit in response to refund request, increased taxpayer’s liability The taxpayer retired as a partner from Deloitte & Touche LLP in 2007. ...

. … However, the Appellant argues that it is a resident of the Netherlands where it is domiciled (though no expert evidence was lead on the issue of Dutch law) in which case it is possible to conclude that the Appellant “is a resident of both States”. ...

The two issues were "the taxability issue"--whether the settlement sum was taxable employment income as "payments and other benefits which are received [by the relevant person] directly or indirectly in consideration or in consequence of, or otherwise in connection with- (a) the termination of a person's employment"; and, if so, "the exemption issue"--whether the settlement sum (or any part of it) was taken out of the above charge to tax by a statutory exemption (“s. 406”) for a payment provided "on account of injury to … an employee", the alleged injury being the injury to the taxpayer's feelings sustained in the context of his age discrimination claim. ...

This provision would have deemed the shares of Alta Canada to be immovable property (thereby permitting the gain from their disposition to be subject to Canadian capital gains tax) on the basis that they derived their value principally from immovable property situated in Canada, subject to an exclusion which deemed the underlying licences not to be immovable property if they were property of Alta Canada “in which the business of the company … was carried on.” ...

. … The situation is one in which the mistake should be corrected by a reassessment rather than by finding the assessment to be void. ...

. … [T]he words of the core definition [of partnership in the Partnership Act 1890] are wide enough to render the recipient of payments in a fixed sum a partner provided that there is a business, that it is carried on with a view to profit and, crucially for present purposes, that he is carrying it on in common with another or others. ...

.”), and (at para. 25): [T]he right to deduct, once it has arisen, is retained even if the intended economic activity was not carried out and, therefore, did not give rise to taxed transactions …. ...

…The Officer’s literal interpretation tends to frustrate both a purposive construction of section 142 and the intent of the ETA to tax consumption of goods in Canada … [and] appears to lead to a result which is at odds with the equitable underpinnings of subsection 23(2) of the FAA. ...

. … [I]t is because interest is, by its nature, symmetrical that the Judge was correct in interpreting subsection 16(1) in the way that he did. ...

In finding that the Tax Court had not committed a palpable and overriding error in this regard Webb JA stated (at para. 43): If the transactions are viewed as only the permits being transferred from Kinderock to the limited partnership and then by the limited partnership to Devonian, … the permits would not be used in an active business being carried on by the limited partnership as they would be transferred immediately upon being received by the limited partnership. ...