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In rejecting the CRA position in this regard, Webb JA stated (at para. 28): The Crown’s interpretation … [is] that all ingredients that are included in the packaged product must be agricultural or plant products grown in Canada, except those that are permitted to be added by the CRA, on the basis that they are “incidental”. This would result in a delegation of authority to the CRA to decide what wine will qualify for the exemption. … [I]t would not have been the intent of Parliament to implicitly delegate this authority to the CRA. ...

This is … a legal error. As stated [in Shell]: “This Court has consistently held that courts must therefore be cautious before finding within the clear provisions of the [ITA] an unexpressed legislative intention...” …. ...

Laskin JA found that the Rules merely required the Minister to produce the documents which were in the hands of the decision-maker when the decision was made – and not to provide various other requested documents (e.g., the constating documents of all registered CAAAs at the time of the decision). However, the affidavit of the CRA decision maker stated that “all relevant materials upon which the CRA relied … have been produced.” ...

The Tax Court found that the transferred assets represented about 68% of the fair market value of the assets of the Tissue Division – and perhaps significantly less, given that some of the Tissue Division assets had not been valued. Accordingly, the requirement of s. 54.2- that all or substantially all of the assets of the business have been transferred to a corporation – had not been met, so that s. 54.2 did not deem the gain on the share sale to be a capital gain. ...

He went on to note that, but for receiving charitable tax credits, the withdrawal and “donation” would have resulted in only a small amount being retained by the taxpayer, and further stated (at para. 44): It also does not seem logical that Mr. van der Steen would withdraw a significant percentage from his RRSP … and give it to an organization about which he knew very little. There was also no satisfactory explanation of why, if [he] … simply wanted to withdraw money from his RRSP and donate it to a registered charity, he donated it all to this particular charity. ...

. … If CIBC was of the view that the Tax Court Judge had made a decision that was not based on the submissions of the parties or contrary to any admitted facts, this should have been raised in its notice of appeal and its memorandum. While this Court may permit a party to raise a new arguments during the hearing of an appeal if the opposing party has a fair opportunity to respond, this is not such a case. … ...

Wall’s “ ex-post facto testimony regarding his intentions cannot overwhelm the manifestations of a different purpose objectively ascertainable from the record”. … Evidence contradicting the taxpayer’s arguments included: Each house was listed for sale before the occupancy permit was obtained. ...

. … Since the comments in Stemijon... that administrative guidance cannot change the law are applicable when the Minister has discretion, they are also applicable when the Minister does not have the broad discretion under the Act to refuse the registration of a CAAA as a RCAAA, other than when the conditions in subsection 149.1(25) of the Act are satisfied. … The guidance as previously drafted by the CRA cannot bind the Minister nor can it alter the provisions of the statutory definition of a CAAA. ...

Canada, 2021 FCA 182-- summary under Sham Summary Under Tax Topics- General Concepts- Sham no requirement for the Crown to explicitly plead “sham” Hogan J had found that a tax shelter partnership, which had funded the prints and advertising expenses for films that it had purchased from Twentieth Century Fox, had not incurred such expenses for an income-producing purpose because there was no real prospect that Fox would not exercise its “options” to repurchase the films – and thus no real prospect that the films would generate revenue to the partnership. ... In concluding that it was not procedurally unfair for Hogan J to make his finding quoted above given what the Crown had pleaded, and after quoting those pleadings, Woods JA stated (at paras. 17, 19): These assumptions were pleaded to put the appellants on notice that the Minister took the view that it was a certainty that the partnerships would not have any income from the exploitation of the films. … The label of “sham” that the Court attached to the arrangement does not mean that the appellants did not have notice of the case they had to meet. ...

Monaghan JA indicated (at para. 52) that the question of whether a due-back constituted pensionable salary and wages for purposes of the Canada Pension Plan Act, or insurable earnings for purposes of the Employment Insurance Act, turned on the “question … whether, based on the relevant facts in the case, the amount in question is paid by the employer to the employee in respect of their employment.” ... Moreover, nothing in the legislation suggests that, to qualify as an amount in respect of employment, the amount must be calculated in a particular way, or with reference to hours worked or sales or any other measurable factor. … Furthermore, the due-backs were paid by the appellant to the servers (para. 37): [T]here is no dispute the electronic tips came into possession of the appellant or that the appellant transferred the due-back, representing a portion of those electronic tips, to the servers. ...