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While these other factors are indicative of operational control, they are not the result of a legally-enforceable arrangement … [and are] factors that McGillivray determined to be irrelevant …. ... Silva’s ability to make the two companies disregard the terms of the development agreement – as he decided to do when he unilaterally decided that the 5% mark-up [under the Development Agreement] would not be paid to ADC. …[I]t would be difficult to imagine a stronger indicator of a non-arm’s length relationship than the fact that a company is allowed to operate out of another’s facility for free, without a lease. … Words and Phrases supply contract ...

For instance, respecting s. 132(4), he stated (at para. 42): [T]he reference to two separate persons in subsection 132(4) can be explained by the fact that two permanent establishments are involved – one in Canada and one outside Canada – neither of which are legal persons on their own account, with the result that each had to be deemed to be a person that is separate from the other in order for cross-border supplies between them to be recognized. ...

It has no application where, as here, each of the transactions was entered into in the pursuit of a bona fide non-tax purpose …. Beyond this, the concept of “series of transactions” is foreign to subsection 160(1). … [S]ubsection 160(1) contains no such specific language. Instead, Parliament resorted to the all-encompassing words set out in its introductory words …. ...

. … Section 174 does not require the Tax Court to make any type of order. ... The Tax Court was entitled to take into account issues of efficiency and procedural fairness. … [T]his Court must defer to such a factually suffused, discretionary finding. … ...

Canada, 2024 FCA 45-- summary under Section 35 Summary Under Tax Topics- Other Legislation/Constitution- Constitution Act, 1867- Section 35 Senate vacancies do not invalidate bills passed with a quorum The taxpayer appealed a reassessment of its 2011 taxation year – made in reliance on a retroactive amendment made to the relevant ITA provision in 2014 – on the grounds that the amending Act was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). In confirming the decision below that this claim should be struck, Biringer JA referred to s. 35 of the Constitution Act, 1867, and stated (at paras. 12-13): Crucially, section 35 makes it clear that the Senate may exercise its powers notwithstanding any vacancies, as long as there is a quorum of senators …. Accordingly, it was plain and obvious that the appellant’s Senate vacancy argument had no reasonable prospect of success …. ...

To this end, subparagraph 84.1(2)(a.1)(ii) requires going beyond the ACB of the shares concerned – or of the shares for which they are substituted – and enquiring as to the source of the funds which constituted them in order to ascertain if they were subjected to tax. … This rationale was circumvented by the plan implemented by the appellant. ...

After finding (at para. 57) that these “terms of the Settlement Agreement are sufficiently certain” to apply to the Appellants in relation to Glenelg, Boivin JA went on to affirm the conclusion of the Tax Court Judge that the terms of the Settlement Agreement were principled and in accordance with the Galway principle, stating (at paras 66, 67): The rule in Galway … prohibits the parties from arriving at settlements that have no basis in the ITA. Since the question in Galway was whether a particular amount of money was to be treated as income or not, the parties could not compromise on the tax treatment of that sum. … The same cannot be said of the facts in the case at bar. … The Tax Court Judge indeed found that: “[s]ection 67 ITA clearly gives the basis for disallowing a portion of the expenses claimed by a particular taxpayer; it does not have to be an all or nothing” …. ...

(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. ...

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. ...

In finding that this exclusion did not apply, Laskin JA emphasized factual findings by the Tax Court that: Visa’s services “form an essential part of the ability for CIBC to offer credit card based services to their clients," … they "[give] CIBC customers the ability to purchase goods and services anywhere in the world without CIBC having to individually contact each merchant to set up payment arrangements with them," and that "[i]f CIBC was forced to create such a payment network on its own, even if technically feasible, this network would invariably be much less widely accepted than the one offered by Visa. ... To describe the benefit that CIBC obtained from Visa’s services … as "quintessentially administrative," [as was done by the Tax Court] does not … adequately recognize the reality of the benefit that CIBC derived. ...