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However, the TFSA submitted that the exemption from tax for an RRSP on business income from the disposition of qualified investments in s. 146(4)(b)) should be read into s. 146.2(6) given that the RRSP and TFSA regimes were “mirror images” of each other – so that “that the phrase ‘carries on one or more businesses’ in subsection 146.2(6) should be read so that a TFSA trust that carries on a business of trading investments under well-established common law principles should not be considered to carry on a business for purposes of subsection 146.2(6) when the business involves only trading in qualified investments” (para. 12). In rejecting this submission, and before dismissing the appeal, Biringer JA stated (at para. 13): We agree with the Tax Court that the appellant’s reading is unsupported by the text, context, and purpose of subsection 146.2(6), and would amount to a re-drafting of the provision …. ...

[Thus] … there was an avoidance transaction since the series of transactions would, but for the GAAR, result in a tax benefit – a reductio ...

However, she stated (at para. 32): A finding of a breach of procedural fairness renders a decision liable to be overturned …. However, where the result is inevitable, a court may exercise its discretion to not grant a remedy for the breach …. ...

However, notwithstanding this favourable finding, the taxpayer was found by the Tax Court not to have established that he did not have a services PE given an evidentiary failing: the figures that he had provided to the Tax Court for the active business revenues generated through the LLC were for calendar 2012, whereas the 50% Treaty test was to be applied to the 188 day period straddling the two years – and there was no evidence of what the U.S. ... As to the evidentiary finding of the Tax Court (paras. 26, 28): Lawrence Wolf … did not adduce any evidence with respect to the actual timing of the earning of the revenue in the United States. … As a result, Lawrence Wolf failed to establish that the Tax Court Judge made any palpable and overriding error in finding that there was insufficient evidence for him to conclude that 50% or less of the gross active business income from Lawrence Wolf’s enterprise was earned in Canada during the period that he was present in Canada. ...

The Tax Court confirmed CRA’s application of s. 245(2) to reduce the taxpayer’s CDA by ½ the amount of the s. 40(3.1) capital gain, thereby generating Part III tax unless an s. 184(3) election was made. Noël CJ indicated (at para. 78) that “declaring the capital dividend before electing the deemed loss was not, in and of itself, objectionable,” after having noted in this regard (at para. 76): … [T]he existence of a positive CDA balance, however generated, is the sole condition that governs a taxpayer’s right to declare a capital dividend. ... In both cases, the undesirable tax attributes that had to be created in order to obtain the tax benefit were isolated from the desirable ones and left to be forgotten without ever having any repercussion. … This defeats the rationale that underlies the CDA regime because it allowed for the payment of a $12,000,000 capital dividend in circumstances where the $12,000,000 deficit that had to be created in the process will never be accounted for. ...

. … Limiting the activities to only those that directly promote amateur athletics would lead to difficulties and uncertainty concerning whether a particular activity or function directly or indirectly promotes amateur athletics and, therefore, could discourage organizations from doing the promotion that the provision is intending to encourage. ... In rejecting the second ground, Webb JA stated (at paras. 62 and 66): For the purposes of paragraph (d) of the definition of a CAAA, it is only necessary that a CAAA carry on its activities across Canada, it is not necessary that such organization have a physical presence in each province and territory. … So long as the organization is promoting amateur athletics in Canada on a nationwide basis, even if it only has an office in one province, it would satisfy the requirement. Before reaching the above conclusions, Webb JA noted that in determining whether registered CAAA (“RCAAA”) status to be granted, the Minister was required “to make certain findings of fact and mixed fact and law,” which was “not the same as having a broad discretion to refuse the registration of a particular organization” (para. 33), he went on to state (at para. 34): 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. ...

In finding that it was an EBP, he cited Oldman (at para. 29) for the proposition inter alia that “[o]rdinarily … an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation,” and then stated (at para. 30): In this case, it is not possible to reconcile the two provisions as they apply to the D2L Employee Trust. … [S]ince the definition of a prescribed trust is set out in the Regulations, the paramountcy of the definition of an employee benefit plan in the Act must govern. ... Webb JA further rejected the taxpayers’ argument that, because a prescribed trust was specifically carved out from the s. 108)1) – trust- para. ...

. … [A] limitation period demands, for its application, precision in the date of resignation. ... Further, there is a two-year limitation period which constrains the Minister’s ability to initiate proceedings against directors for unremitted source deduction. … Reliance on the subjective intention or say-so of a director alone would allow a director to plant the seeds of retroactive resignation, only to rely on it at some later date should a director-linked liability emerge. ...

. … Until such time as the contemplated transaction closed, it is arguable that Aviva could have carved up its rights to acquire the shares among other persons so that, at closing, it would acquire not more than 20 per cent of the target company. ... Similarly, in the Court of Appeal, Noël CJ dismissed the appeal, stating (at paras 50, 54, TaxInterpretations translation): [T]he reality is the holding of a future right to acquire shares does not equate to the holding of shares to which such right relates. … [N]othing in this case suggests that the purchase option conferred by [the shareholders’ agreement] was intended to frustrate section 148 of the ARDFPS. ...

Canada, 2018 FCA 74-- summary under Subsection 245(4) Summary Under Tax Topics- Income Tax Act- Section 245- Subsection 245(4) using ss. 75(2) and 112(1) for tax-free dividends to trust thwarted s. 112(1) object to tax earnings when ultimately distributed In order to strip surplus of an operating corporation (“Gennium”) controlled by the Pilon family, a dividend paid by Gennium was distributed through a series of transactions to a corporation with no assets (“9163”), which then paid the amount to a Pilon family trust (“Satoma Trust” – which also had a corporate beneficiary) as a dividend on special shares that Satoma Trust held in 9163. ... The structure implemented … effectively insulated the taxable dividends received from the scope of the tax regime without any tax being paid. ...