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However, although in form Veracel was the larger corporation, essentially all its assets were the subscription-receipt cash proceeds – and “There was no scenario under which Veracel would have been allowed to retain the money…” (para. 53). ...

. … PCI justifiably submitted that the position adopted by the ARQ, that the SADI Agreement was a forgivable loan given that the required repayments were a function of the growth in future revenues (so that the obligation to repay depended on the occurrence of an uncertain and future event), was a position which was relied upon in the dissent and rejected by the majority in McLarty. ...

This general rule has only one exception, which is the case in which the question before the court has an inevitable answer …. ...

Paletta International reported a loss of US$96.1 million from the partnership, which mostly related to its share of the P&A expenses – and also reported a capital gain from the disposition of its partnership units (but took advantage of the 5-year capital gains reserve.) ...

. … The analogy with the Kellogg and Evans cases is not perfect, because the former involved a business and the latter involved income from a trust, but it is sufficient to convince us that an expense is not capital in nature simply because the expense is not recurring or extraordinary. ...

It did so 505 times in the relevant period…” (para. 55) “I accept, of course, that the enduring nature of an outgoing is a very relevant matter … but I do not think that the five year term obtained under the contracts here was of such a nature. ...

The failure to do neither, in the Decision itself or the recommendation which preceded it, had the effect, as it appears to me, in the particular circumstances of this case in the context of an application which is essentially an equitable one, of “depriving the process of justification, transparency and intelligibility,” to adopt the expression used in Telfer …. ...

The relevant dicta are mainly collected in a summary by Lord Walker in DCC Holdings (UK) Ltd v Revenue and Customs Comrs [2011] 1 WLR 44, paras 37-39 …: (1) The extent of the fiction created by a deeming provision is primarily a matter of construction of the statute in which it appears. (2) For that purpose the court should ascertain, if it can, the purposes for which and the persons between whom the statutory fiction is to be resorted to, and then apply the deeming provision that far, but not where it would produce effects clearly outside those purposes. (3) But those purposes may be difficult to ascertain, and Parliament may not find it easy to prescribe with precision the intended limits of the artificial assumption which the deeming provision requires to be made. (4) A deeming provision should not be applied so far as to produce unjust, absurd or anomalous results, unless the court is compelled to do so by clear language. (5) But the court should not shrink from applying the fiction created by the deeming provision to the consequences which would inevitably flow from the fiction being real. ...

Gleason JA also rejected a submission that the Tax Court had focused insufficiently on whether there had been a corporate intent to impoverish the corporations, stating (at para. 44) that “this Court … [has] found that a shareholder benefit was conferred without any determination having been made as to the corporation’s intent” and (at para. 45) “even if intent to impoverish the corporation were required, such intent cannot be equated with a controlling shareholder’s subjective intent and most especially not with an intent that was formulated [as in the case here] after the corporate expenditure was engaged”. ...

After noting (at para. 38) that such a double increase would represent “an absurd result,” Noël CJ stated (at para. 48): [T]he appellant’s partnership interest had already been acquired when the shopping centres were transferred, thereby eliminating any possibility that, in addition to the subsection 97(2) adjustment, the partnership interest could be increased under section 54 by the “cost”, i.e. the fair market value, of the transferred property …. ...