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These are set out in Happy Valley Farms …. …[O]ne of the considerations that is listed as a relevant factor is the frequency or number of other similar transactions completed by the taxpayer. While it would be presumed that Atlantic Packaging would not be frequently selling off an entire division, there is no indication of whether Atlantic Packaging followed a similar pattern or similar transactions in disposing of other depreciable property. … [T]he absence of this evidence is sufficient for this Court to reject Atlantic Packaging’s argument that this new issue should be considered by this Court. The Crown has been deprived of any opportunity to explore the facts related to the frequency or number of similar transactions …. ...

Canada, 2020 FCA 118-- summary under Subsection 207.06(2) Summary Under Tax Topics- Income Tax Act- Section 207.06- Subsection 207.06(2) FCA would be prepared to consider whether any broad discretion of CRA to waive tax was unconstitutional The taxpayer, who had been assessed TFSA advantage tax under s. 207.05, and was unhappy with the amount of the tax that the Minister had ultimately offered to waive under s. 207.06, brought a Rule 58(1) application to the Tax Court, which asked whether s. 207.05 offends s. 53 of the Constitution Act, 1867 – with counsel arguing that in light of the potential waiver under s. 207.06 “the Minister sets the rate of tax, not Parliament, and this offends section 53” (para. 4). ... In describing where assistance was needed, he stated (at paras. 13-15): [A]fter a full examination of the text in light of its context and purpose, the Court might conclude that Parliament’s provision, in its authentic meaning, satisfactorily constrains the Minister’s discretion and defines what she can do and how she should do it. … But in other cases, the Court might conclude that Parliament’s provision, in its authentic meaning, gives the Minister an unconstrained, undefined discretion without criteria. ... They would not fix the fatal problem: Parliament’s over-delegation of taxation power in the first place contrary to section 53 …. ...

In affirming the Tax Court’s finding that CRA could reassess those years beyond the normal reassessment period, Webb JA first found that the Crown had made out a prima facie case that the withdrawals were income to the taxpayer, and that this then permitted the Tax court to draw an adverse inference regarding the taxpayer’s failure “to call his accountant or bookkeeper, or presenting a properly completed shareholders’ loan account reconciliation” (para. 48) – hence, there had been a misrepresentation. ... However, Webb JA reversed the imposition of a gross negligence penalty, stating (at paras. 63, 76-77): Conduct that would be tantamount to intentional acting to avoid the payment of taxes on money that is withdrawn from a corporation is different from careless or neglectful conduct that results in a person being taxed for receiving a benefit from that corporation in statute-barred years. … The fact that M.D. ... Consulting. … Mr. Deyab’s failure to maintain proper records that might have established that M.D. ...

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. ...

Before dismissing the appeal, Woods JA stated (at para. 18): … [T]he valuation report makes it clear that the report was intended to influence prospective purchasers. ... As for its purpose, the Department of Finance has expressed concern about “abuses through aggressive tax shelter promotions” … The concern expressed by the government would be frustrated if the legislation were applicable only to certain types of promotions. She went on to find (at para. 25) that even though the tax opinion in the valuation report only explicitly opined that the software was Class 12 property and was available for use- and not that its cost could be deducted over two years: … The Tax Court did not err when it concluded that prospective purchasers would reasonably consider that the report indicated that they could deduct the purchase price over the period allowed for Class 12 property that is available for use. ...

. … 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. … ...

He argued that since he had established that around ¼ of the payments received by him as cheques from a corporation, with which he did not deal at arm’s length, properly reimbursed him for business expenses, he had demolished the Minister’s “exact” assumption made in assessing him under s. 160 that the taxpayer had “provided no consideration for the cheques.” In rejecting this position, Monaghan JA stated (at para. 21) that the taxpayer “places far too much emphasis on the word ‘exact’ and gives insufficient weight to the word ‘demolish’ in … Hickman. ” and further stated (at para. 24) that “establishing some consideration for the cheques is not sufficient to demolish the Minister’s assumption,” noting in this regard (at para. 25) that the “purpose of pleading the assumption is to provide the appellant with notice of the case the appellant has to meet” and here, the taxpayer knew that, in the context of a s. 160 assessment, he needed to establish that he had provided fair market consideration for the cheques, “not merely some consideration.” ...

This occurred – the offer of another public company (“Inco” – the 25% minority shareholder) was accepted by the Diamond Fields shareholders, thereby triggering the payment by Diamond Fields of the break fee. ... Among other findings: “Diamond Fields paid the Fees in order to entice Falconbridge to make an offer pursuant to the merger arrangements” so that it was “reasonable to consider that the Fees were received by Falconbridge as an inducement for the purposes of s. 12(1)(x)” (para. 61 – and in this regard “the evidence as to Falconbridge’s motivation to negotiate a fee (i.e., to deter another bidder and to earn a profit if the bid failed) is not relevant to this issue” (para. 63); and “The Fees were linked to Falconbridge’s operations as a nickel mining company”, which “required access to ore deposits” so that they were received “in the course of” those activities (a phrase which was essentially equated with "in connection with") (para. 70); furthermore, “the Fees were linked to an acquisition of shares that had the capacity to produce property income” so that they were “also received in the course of earning income from property” (para. 71). ...

Canada, 2019 FCA 147-- summary under Supply Summary Under Tax Topics- Excise Tax Act- Section 123- Subsection 123(1)- Supply no supplies between PEs of the same person in the absence of s. 132(4) Noël C.J indicated (at para. 42) that s. 132(4) dealt with the situation where “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.” ...

Canada, 2020 FCA 90-- summary under Redundancy/reading in words Summary Under Tax Topics- Statutory Interpretation- Redundancy/reading in words narrower construction avoided rendering language redundant Before going on to indicate that the expansive interpretation of s. 149(1)(d.5) submitted by the taxpayer would have the effect of making it unnecessary in the provision to refer to a municipality, Mactavish JA stated (at para, 52): [L]egislatures generally avoid the use of unnecessary or superfluous words in legislation, and that every word in a statute is presumed to have a specific role to play in advancing the legislative purpose: … Proulx, 2000 SCC 5 ….. ...