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NO JURISDICTION IN TAX REVIEW BOARD OR FEDERAL COURT — TRIAL DIVISION (2) Neither the Tax Review Board nor the Federal Court — Trial Division has jurisdiction to entertain any proceeding in respect of a decision of the Minister from which an appeal may be instituted under this section. ... Furthermore, the record of the material before the Director has an even more serious defect — that is — it is a unilateral record since it contained no imput from the appellant. ... In order to understand the issue, it is necessary to have in mind the following provisions of the Income Tax Act'. 168. (1) Where a registered charity or a registered Canadian amateur athletic association (a) applies to the Minister in writing for revocation of its registration, (b) ceases to comply with the requirements of this Act for its registration as such, the Minister may, by registered mail, give notice to the registered charity or registered Canadian amateur athletic association that he proposes to revoke its registration. (2) Where the Minister gives notice under subsection (1) to a registered charity or to a registered Canadian amateur athletic association, (a) if the organization or association has applied to him in writing for the revocation of its registration, the Minister shall, forthwith after the mailing of the notice, publish a copy thereof in the Canada Gazette, and (b) in any other case, the Minister may, after the expiration of 30 days from the day of mailing of the notice, or after the expiration of such extended period from the day of mailing of the notice as the Federal Court of Appeal or a judge thereof, upon application made at any time before the determination of any appeal pursuant to subsection 172(3) from the giving of the notice, may fix or allow, publish a copy of the notice in the Canada Gazette, and upon such publication of a copy of the notice, the registration of the organization or association is revoked. 172. (3) Where the Minister (a) refuses to register an applicant for registration as a registered charity or registered Canadian amateur athletic association, or gives notice under subsection 168(1) to such a charity or association that he proposes to revoke its registration, the applicant or the charity or association, as the case may be, in a case described in paragraph (a),... may, notwithstanding section 2e of the Federal Court Act, appeal from... the giving of such notice to the Federal Court of Appeal. 180. (1) An appeal to the Federal Court of Appeal pursuant to subsection 172(3) may be instituted by filing a notice of appeal in the Court within 30 days from (a) the time the decision of the Minister to refuse the application for registration or for a certificate of exemption or to revoke the registration of the profit sharing plan was served by the Minister by registered mail on the party instituting the appeal, or (b) from the mailing of notice to the registered charity or registered Canadian amateur athletic association under subsection 168(1), as the case may be, or within such further time as the Court of Appeal or a judge thereof may, either before or after the expiry of those 30 days, fix or allow. (2) Neither the Tax Review Board nor the Federal Court — Trial Division has jurisdiction to entertain any proceeding in respect of a decision of the Minister from which an appeal may be instituted under this section. (3) An appeal to the Federal Court of Appeal instituted under this section shall be heard and determined in a summary way. ...

It is clear from the foregoing, it seems to me, that the trial judge did not wholly accurately describe the law when he said that ”... an expenditure properly deducted according to accounting standards would be deductible for tax purposes unless prohibited by some provision of the Act. ... (as he then was) said, ”... be answered having regard to the facts of the particular case and the weight which must be given to a particular circumstance must depend upon practical circumstances. ... First, the meaning of the word mine”, inter alia, ” is by no means fixed and is readily controlled by the context and subject matter.” ...

S.C. 1970-71-72, c. 63) (the “ Act”) as it then was — the provision was repealed by S.C. 1986, c. 55, subsection 5(1); (2) deductions of manufacturing and processing tax credits from tax otherwise payable, pursuant to s. 125.1 (1) of the Act; and (3) deductions of capital cost allowance on property included in Class 29 of Schedule Il of the Income Tax Regulations. ... There is a sale of replacement parts, but the majority of these parts are not manufactured or processed by the taxpayer — or at least the taxpayer here, somewhat like the taxpayer in Crown Tire, which could not identify the percentage of its ownership of the tire casings, is unable to say what proportion of parts sold it manufactures itself. ... Dubé, J. there found (at page 6154) that the taxpayer “ manufactures a specialized product [rubber covers for its customers” roll cores] with its expensive and highly sophisticated machinery, then delivers that good by applying it to the customer's roll.” ...

The defendant, being ignorant of this situation, took possession of the goods and agreed to sell them to a firm of cotton spinners, Messrs Micholls, Lucas & Co. ... In Jarmain v Hooper (1843), G M & G 827 the defendant had secured judgment against one “Joseph Jarmain” after which he took out a writ of fl fa. ... The case of Wilson v Tumman (1843), G M & G 236 was decided by Tindal, CJ in the same year. ...

Harnett & Richardson solicited many residents of Bermuda as potential policy holders, and provided rate quotations to others there. ... Harnett & Richardson and, at the same time, handed over to that firm the respondent's insurance policies being effected on the lives of two local residents. ... Smidth & Co. v. F. Greenwood (Surveyor of Taxes), [1921] 3 K.B. 583 (C.A), affirmed [1922] 1 A.C. 417 (H.L.), and more recently in Firestone Tyre & Rubber Co. ...

These issues must be analyzed with the relief sought on the motion in mind — that of securing a judgment before trial pursuant to Rules 341 or Rules 432.1 to Rule 432.7 of the Federal Court Rules. ... Moreover, in its ordinary and natural meaning “seizure” as understood at common law is “a forcible taking possession”: Johnston & Co. v. ... Telford, [1987] 2 S.C.R. 193, [1987] 6 W.W.R. 385; Atlantic Lines & Navigation Co. ...

Edgar & J. Li, Materials on Canadian Income Tax, 10th ed. (Toronto: Carswell, 1993) at page 726-27. ... On the facts of this case it was held below that neither party to the transaction had such a purpose, a finding which tends to support the understanding that the purposes of both parties ought to be examined: on this last point see Bentleys, Stokes & Lowlees v. ... Specifically the Minister relies on the following passage of Brennan J. at page 215: Purpose may be either a subjective purpose — the taxpayer’s purpose — where it means the object which the taxpayer intends to achieve by incurring the expenditure; or it may be an objective purpose, meaning the object which the incurring of the expenditure is apt to achieve. ...

It is also true that the common-law tests to identify charities as set out in the leading English case of Pemsel v Special Commissioners of Income Tax, 3 TC 53; [1891] AC 531; [1888] 2 All ER Rep 296 (ie relief of poverty, advancement of religion, advancement of education, other purposes of a charitable nature beneficial to the community as a whole) — which tests have been accepted in this country (see: Guaranty Trust Company of Canada v MNR, 1967 SCR 133) and are now applied in practice (see: Information Circular 77-14 issued by the Department) — remain quite vague. ... I agree with Mr Justice Marceau that there is a factual difference between the Renaissance case and the case at bar, namely — in the case at bar the Minister’s decision to refuse registration was made solely on the evidence submitted by the appellant itself. ... Rejection of registration has for it, very serious consequences — for example — rejection would very seriously restrict its fund raising capabilities. ...

The classic statement of the capital expenditure or outlay rule was given by Viscount Cave, L.C. in British Insulated & Helsby Cables Ltd. v. ... See also Montreal Light, Heat & Power Consolidated v. M.N.R., [1942] S.C.R. 89; [1942] C.T.C. 1; 1 D.T.C. 535, aff'd [1944] C.T.C. 94; 2 D.T.C. 654 (P.C.); B.C. ... [on] an advance made to him but was paid on the principal sum remaining unpaid under his guarantee... ” Ibid. ...

He impressed the learned trial judge as “... ambitious, mentally very energetic, of great business acumen,'shrewd and with nothing about him of the naive” (see trial judgment, Appeal Book, vol II, p 252). ... Lord Loreburn added that the answer is in each case “... a pure question of fact to be determined, not according to the construction of this or that regulation or by-law, but upon a scrutiny of the course of business and trading”. ... I would, accordingly, and for the foregoing reasons, dismiss the appeal with costs. 1 Appeal Book, p 264. 2 *See for example: Pine Ridge Property Ltd v MNR, [1973] CTC 201; (FCA per Jackett CJ); See also: Racine et al v MNR, [1965] CTC 150; 65 DTC 5098 at 5103. 3 See: Stein Estate v The Ship “Kathy K’’, [1976] 2 S.C.R. 802 at 808 (per Ritchie, J). 4 See: Metivier v Cadorette, [1977] 1 S.C.R. 371. 5 Appeal Book, p 267. 6 + De Beers Consolidated Mines, Ltd v Howe, [1906] AC 455 at 458. 7 Compare: Union Corporation Ltd v Inland Revenue Commissioners, [1952] 1 All ER 646 (Evershed MR at 656-8). 8 + Tara Exploration & Development Company Limited v MNR, [1970] CTC 557; 70 DTC 6370. 9 J Unit Construction Co Ltd v Bullock [1960] AC 351. 10 Compare: The Queen v Rockmore Investments Ltd, [1976] 2 FC 428 at 430 and 431; [1976] CTC 291 at 293; 76 DTC 6156 at 6157—(per Jackett, CJ). ...