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. … [I]n light of ADC’s near-total economic dependence on Seawind Corp., the fact that the owner of the latter company dictated (and was able to dictate) the terms of the relationship between the two companies is a very relevant factor in determining whether the two were dealing at arm’s length. ... Silva’s ability to make the two companies disregard the terms of the development agreement – as he decided to do when he unilaterally decided that the 5% mark-up [under the Development Agreement] would not be paid to ADC. …[I]t would be difficult to imagine a stronger indicator of a non-arm’s length relationship than the fact that a company is allowed to operate out of another’s facility for free, without a lease. … ...

Miller J had required the Minister to disclose a draft proposal letter in the audit file, as well as a memo dated March 8, 2004 from Income Tax Rulings Directorate Finance’s Director General, Tax Legislation (excepting portions thereof that identified another taxpayer) in which the Directorate expressed concerns regarding the scope of the restrictions on the deductibility of non-capital losses under s. 111(5) and requested an amendment to “deem an acquisition of control to occur where a person or group of persons acquire, as part of a series of transactions, a certain level of equity in a corporation […] and one of the main purposes of the series of transactions is to avoid any limitation of the deductibility of non-capital losses”. ... However, Gleason JA stated (para. 28): [T]he documents in issue are of limited relevance and likely inadmissible at trial as, under the GAAR analysis, the question of the policy in the ITA that the taxpayer is alleged to have avoided is ultimately a question of law. … Thus, while it may well be incumbent on the Minister to set out the disputed policy in the Minister’s pleadings as a matter of fairness … it does not follow that evidence on the policy will be admissible at trial as matters of law are for a court to determine. ...

., 2019 FCA 183-- summary under Paragraph 135(2)(a) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Excise Act, 2001- Section 135- Subsection 135(2)- Paragraph 135(2)(a) all-ingredients test applied to each alcoholic component – not to all components The respondent (Mark Anthony) produced fortified fermented ciders made from apples grown and fermented in Canada, to which was added certain other ingredients before the products were packaged, including spirits not fermented in Canada and apple juice concentrate which was not made from Canadian apples. ... Before finding that the exemption applied except (as acknowledged by Mark Anthony), in the case of the beverages that included the imported spirits, did not qualify for the exemption, Webb JA first rejected the position of the Crown that the “all ingredients” test was to be applied at the packaging rather than earlier fermentation stage, 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. ...

Following the realization shortly thereafter by Newco of a taxable capital gain and recapture of depreciation on a sale of the building, Newco increased the adjusted cost base to Holdco of its shares by effecting a series of s. 84(1) dividends (including a capital dividend) – following which the individual sold his shares of Holdco to a third party for a sale price based on the amount of cash sitting in Newco. ... Respecting the mechanics of how the pre-April 20, 2015 version of s. 55(2) operated to generate a capital gain as a result of the denial of safe income, he stated (at para. 74): Paragraph 55(2)(a) … provides that the amount in issue is deemed to not be a dividend. As a result, there is no addition to the adjusted cost base of the shares for this amount under paragraph 53(1)(b) …. ...

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. ...

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. ...

Canada, 2020 FCA 90-- summary under Consistency Summary Under Tax Topics- Statutory Interpretation- Consistency presumption of the same meaning Before finding that a marginal note to s. 149(1)(c), which paragraph had similar wording to s. 149(1)(d.5), illuminated the interpretation of the latter provision, Mactavish JA stated (at para. 56): [I]t is … a basic principle of statutory interpretation that where the same words appear in different parts of a statute, the presumption is that they are to be given the same meaning: R. v. Zeolkowski, [1989] 1 S.C.R. 1378 … at para. 19. ...

The Queen, 94 DTC 6050, [1994] 1 CTC 3 (FCA)-- summary under Onus Summary Under Tax Topics- General Concepts- Onus demolition of assumptions by taxpayer leaves Minister with the ordinary civil-suit persuasive burden After rejecting the taxpayer’s submission that where some of the Minister’s assumptions were demolished by the taxpayer, the Minister’s position must necessarily fail unless the Minister can show that the remaining undemolished assumptions by themselves support the assessments, Hugessen JA went on to state (at p. 6053) that where the Minister has pleaded assumptions or the assumptions have been rebutted, “it remains open to the Minister … to establish the correctness of his assessment if he can” and that “in undertaking this task, the Minister bears the ordinary burden of any party to a lawsuit, namely to prove the facts which support his position ….” ...