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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…. ...

Before dismissing the taxpayer’s appeal of 2009, Dawson JA stated (at para. 50): … [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. In allowing the Crown’s appeal of 2010 and 2012, she stated (at paras. 75, 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. Such concern is intended to be addressed by other legislative provisions, including the Minister’s ability to waive or cancel advantage taxes (subsection 207.06(2) of the Act) and to determine the unused TFSA contribution room (subsection 207.01(1) of the Act and more particularly the definition of “unused TFSA contribution room” as enacted in S.C., 2010, c. 25, subsections 57(5) and 57(8). … 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. … [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. ...

This conclusion … necessarily flows from section 2.2 of the loan agreements which made each of the appellants’ entire donation conditional on the loan being approved by the lender …. ... [T]he Tax Court judge was also bound to hold that “no part of [the interconnected transaction] can be considered a gift that the appellant[s] gave in the expectation of no return” …. It follows that there was no gift whether the matter is considered from a common law or a civil law perspective. … In response to a further submission that “it is possible to make a ‘“profitable” gift’ due to the favourable tax consequences that some gifts provide” (para. 54), Noël CJ stated (at para 60): [T]the fact that a tax benefit is received as a result of making a gift cannot, in and of itself, invalidate the gift as to hold otherwise would mean that Parliament would have spoken in vain in providing for tax benefits consequential on making qualified gifts. ...

In finding that such requests could not succeed, Rivoalen JA stated (at paras. 35-37): … If an order setting aside the requirement for information is granted, the Minister will be prevented from properly exercising her powers under the Act. … The Minister has not yet assessed. ... In my view, Valero cannot stop the Minister from carrying out her statutory duty under the Act to assess income tax payable by way of an application for judicial review. … [T]he doctrines of promissory estoppel and legitimate expectations cannot be utilized to prevent the Minister from obtaining the necessary documents she requires to properly administer the Act and fulfill her obligations. … Furthermore, Valero’s alternative request was premature: Once the Minister receives the documents, if she assesses Valero for not withholding tax, Valero may have recourse in accordance with administrative law principles. ...

CRA assessed him advantage tax under s. 207.05 equalling 100% of the appreciation of the shares within his TFSA before the shares’ sale – and, following taxpayer submissions, proposed to waive a portion of the tax pursuant to s. 207.06 so as to reduce the effective rate of advantage tax to his marginal federal and provincial tax rate. ... However, he found that the Court should not so exercise its discretion, stating (at para. 18): [W]here the foundation supporting a ruling on a constitutional question is missing or faulty and we do not have to decide the question, we should not do so …. ... They would not fix the fatal problem: Parliament’s over-delegation of taxation power in the first place contrary to section 53 …. ...