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What mattered at the time … was “the relationship of the person acquiring the [house] to the builder—one of purchase and sale—[…], not the relationship between co-purchasers” (Cheema at para. 94). ...

Preston, 2023 FCA 178-- summary under Onus Summary Under Tax Topics- General Concepts- Onus assumptions of mixed fact and law were not prejudicial to the taxpayer – and an FMV assumption instead is factual The Tax Court ordered that “assumptions of fact” pleaded by the Crown in its Reply should be struck out and moved to the reasons part of the Reply on the sole ground that they were in fact conclusions of mixed fact and law. ...

In discussing the issue as to whether s. 18.5 of the Federal Courts Act precluded the judicial review application given the statutory appeal mechanism, Boivin JA adopted the finding in inter alia Best Buy (2021 FCA 161) that in such circumstances, “a complete bar to judicial review would be incompatible with the rule of law” and that both types of errors are reviewable: “errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review …” (para. 29). ...

In affirming this finding, Boivin JA distinguished Kevin Davis Dentistry, which gave effect to the expressed Parliamentary intent to “provide for different tax treatment of supplies of orthodontic appliances and orthodontic service” (para. 25) whereas, here, the Ontario regulations did “not amount to as clear an indicator of Parliament’s intent as the GST Act did in Kevin Davis Dentistry ” (para. 28). ...

The shareholder group consisted of (i) two unrelated individuals (Souty, and Foix – who held his shares through a passive portfolio company (“Virtuose”),) (ii) trusts for the two respective families (the Souty and Foix Trusts) and (iii) after giving effect to intricate preliminary transactions, two holding companies for Souty and Foix through which they held a portion of their shares of W4N (in the case of “Souty Holdco”) or of Virtuose (in the case of “Foix Holdco”). ... He went on to indicate (at para. 67) that “the scope of subsection 84(2) is sufficiently broad to counter this type of distribution when the property being distributed is fungible and a third-party facilitator is involved in the extraction process” and (at para. 69) that “it would be contrary to Parliament’s intention to turn a blind eye to the existence of a distribution or appropriation for the sole reason that, for example, the shareholder received the target corporation’s property as a creditor rather than as a shareholder … or, as in the present case, that the funds received by the shareholder originate directly from a third party but indirectly from the target corporation.” ...

Trudel JA found no reviewable error in the finding of Boyle JA that as "Dividend B was paid in proportion to shareholdings then it could not have been paid ‘in proportion to assessments ' and thus Dividend B would clearly not fall within the ambit of paragraph 137.1(10)(a)" (para. 49). ...

Lehigh Cement Limited, 2014 DTC 5058 [at at 6849], 2014 FCA 103, aff'g 2013 DTC 1139 [at 740], 2013 TCC 176-- summary under Paragraph 95(6)(b) Summary Under Tax Topics- Income Tax Act- Section 95- Subsection 95(6)- Paragraph 95(6)(b) restricted to status-manipulating acquisitions or dispositions The taxpayer ("CBR Canada") directly (as to 99%) and indirectly (through a wholly-owned Alberta subsidiary as to 1%) used $US 100 million borrowed from two arm's length non-resident banks (with the principal but not the interest obligation under the first loan then being assigned by the first bank to a Belgian subsidiary of the taxpayer's ultimate Belgian parent – "CBR SA") by making capital contributions to a US LLC, which used those funds to make interest-bearing loans to a U.S. sister corporation ("CBR US") of CBR Canada. ...

Regarding the Minister's argument that Article 13 was only included "for greater certainty," Sharlow J.A. stated: The OECD model conventions, including the Canada-Austria Income Tax Convention, generally have two purposes – the avoidance of double taxation and the prevention of fiscal evasion. ...

On appeal to the Court of Appeal, the Minister raised several new arguments, including that: the transactions were abusive of ss. 3, 4, 9 and 111, an underlying policy of which is that business loss claims should reflect actual losses; the taxpayer's purported losses were not business losses, given that the shares were not acquired as inventory or as part of and adventure or concern in the nature of trade (see "Rollover and other non-trading transactions "); and to the extent that the taxpayer had any losses, they were capital in nature. ...

. … If the payments were remuneration payable to Ms. Kirsten for her services, subsection 56(2) would not require the payments to be taxed in the hands of Mr. ...