Search - consideration

  [15]          The relevant legislation includes the following:   226(1)  In this section, “returnable container” means a beverage container (other than a usual container for a beverage the supply of which is included in Part III of Schedule VI) of a class that               (a)        is ordinarily acquired by consumers;             (b)        when acquired by consumers, is ordinarily filled and sealed; and               (c) I      s ordinarily supplied empty by consumers for consideration.   226(2)  For the purposes of this section, where a person supplies a beverage in a returnable container,   (a)        the provision of the container shall be deemed to be a supply separate from, and not incidental to, the provision of the beverage;   (b)    section 137 does not apply to deem the container shall be deemed to be equal to that part of the total consideration for the beverage and the container that is reasonably attributable to the container.        ... As opposed to my findings in the present situation, Sheridan J. found there was sufficient evidence to conclude that SAS marked up beer prices to reflect the deposit cost, and therefore part of the customer’s consideration was for the bottle ...

Friedberg, 92 D.T.C. 6031, where Linden J.A. defined “gift” as:   … [A] gift is a voluntary transfer of property owned by a donor to a donee, in return for which no benefit or consideration flows to the donor …   [21]          Respondent counsel referred to the case of Coombs et al v. The Queen, 2008 D.T.C. 4004, where Woods J. at paragraph 15 referred to the elements of this definition in the following manner:   … First, it is necessary that the gifted property be owned by the donor, second that the transfer to the charity be voluntary, third that no consideration flow to the donor in return for the gift, and fourth that the subject of the gift be property, which distinguishes it from providing services to the charity. ... These cases make it clear that in order for an amount to be a gift to charity, the amount must be paid without benefit or consideration flowing back to the donor, either directly or indirectly, or anticipation of that. ...

Friedberg, 92 D.T.C. 6031, where Linden J.A. defined “gift” as:   …[A] gift is a voluntary transfer of property owned by a donor to a donee, in return for which no benefit or consideration flows to the donor…   [19]          Respondent counsel referred to the case of Coombs et al v. The Queen, 2008 D.T.C. 4004, where Woods J. at paragraph 15 referred to the elements of this definition in the following manner:   … First, it is necessary that the gifted property be owned by the donor, second that the transfer to the charity be voluntary, third that no consideration flow to the donor in return for the gift, and fourth that the subject of the gift be property, which distinguishes it from providing services to the charity. ... These cases make it clear that in order for an amount to be a gift to charity, the amount must be paid without benefit or consideration flowing back to the donor, either directly or indirectly, or anticipation of that. ...

However I do think he was providing some guidance as to the practical considerations to be taken into account by a Tax Court judge in exercising discretion in these cases ...   …   17        The relevant considerations are, first, that the taxable benefits at issue are $6,348.00 for the year 2000 and $4,801.00 for the year 2001. ... This is not a case in which the Minister's error in not referring to paragraph 6(1)(l) in the original Reply was self-evident and in respect of which, the appellant should have anticipated an amendment.   20        Having regard to these considerations, I would exercise my discretion to refuse to allow the amendment to add paragraph 6(1)(l) of the Income Tax Act to the Minister's Reply in the Tax Court. ...

I agree with counsel for the Appellant that, in all the circumstances of this case, the relatively small amount involved and straight-forward nature of the appeal ought to have motivated the Minister to give at least some consideration to the Appellant’s offer to settle. ... Other considerations may apply when considering an offer to settle liquidated or unliquidated damages in an action. ... He added the impetus to settle is a mechanism which enables a plaintiff to make a serious offer respecting his or her estimate of the value of the claim which will require the defendant to give early and careful consideration to the merits of the case.   12         As argued by counsel for COA, Olymel's offer contained no element of compromise although it was made after Olymel had filed its respondent's memorandum of fact and law which, in my view, was not so persuasive and convincing as to render COA's continuation of the appeal without merit. ...

The Appellant acquired 50% of the common shares of the Corporation in consideration of the skills that he brought to the operation of the business ...   [13]          This brings me to a consideration of the Respondent’s alternative argument that the Appellant remained a de facto director of the Corporation during the Relevant Period because his conduct was similar to the conduct of a person who was qualified to act as a director of the Corporation. ... Analysis: Income Tax Assessment   [21]          The Appellant was assessed under section 160 of the ITA, which provides that the transferee (in this case, the Appellant) and transferor (in this case, the Corporation), if they are not dealing at arm’s length, are jointly and severally liable to pay the transferor’s tax up to an amount equal to the lesser of (a) the amount by which the fair market value of the property at the time it was transferred exceeds the fair market value at that time of the consideration given for the property, and (b) the amount of the transferor’s tax liability (defined as all amounts owing under the ITA) for the taxation year in which the property was transferred or a preceding taxation year ...

The consideration for this transaction included the payment of $600,000 to Lifetech, and the provision to Lifetech of the exclusive right to develop and commercialize in Canada a proprietary diagnostic test for kidney disease (which was later changed to the exclusive right to develop and commercialize a proprietary diagnostic test for osteoporosis) upon the acquisition by Charterbridge, if any, of such a right. ... Thus, a gift is a voluntary transfer of property owned by a donor to a donee, in return for which no benefit or consideration flows to the donor (see Heald, J. in The Queen v. ... At page 6528 of Cooper, he stated:   There is no doubt that in some sense, the loan made to the Plaintiff constituted a substantial benefit to him, as anyone who has attempted to negotiate an interest-free loan may attest. […]   [40]     Counsel for the appellant also submits that the appellant made the Donation primarily for charitable reasons, and that the tax savings were a secondary consideration. ...

The reasons for proceeding in this way and the procedure followed are explained in paragraphs 12.5 et seq. of the Reply to the Notice of Appeal, reproduced below:   [Translation] 12.5           Given that the appellant's accounting records were deficient, that meal bills were missing for the period from January 29, 2002, to July 11, 2003, and that a preliminary test comparing sales to purchases had revealed inconsistencies and irregularities in the amounts reported by the appellant, the auditor used an indirect audit method to reconstruct the appellant's sales during the period in question. 12.6           The audit method used was the sampling method, which consisted in analyzing the purchases and sales of selected items during the survey period. 12.7           The survey period ran from July 30, 2003, to December 31, 2003. 12.8           Given that the appellant had not kept the meal bills for the period from January 29, 2002, to July 11, 2003, the survey period was used as a reference for that period. 12.9           At the start of the audit in July 2003, the auditor informed the appellant's representative that, from then on, he had to keep the meal bills, and the auditor used the bills for the five months that followed, namely, August to December 2003, for her sampling. 12.10       Despite the auditor's request that the meal bills be sorted by date, they were not sorted, which made it almost impossible to reconcile them with the cash register tapes. 12.11       The auditor used a sampling interval of 10, which meant that 1 out of every 10 meal bills was used in the sampling. 12.12       The auditor selected three of the food items served at the restaurant to use in her audit, namely, hamburger buns, cheese curds and beer. 12.13       The sampling interval, the total number of meal bills available as well as the number of selected items and the frequency with which those items are found on the selected bills are sufficient for the auditor's survey to have 95% reliability and a 10.7% margin of error. 12.14       For each selected meal bill, the auditor wrote down the date, number, net sale amount and the selected items referred to in subparagraph 12.11 if they were on the bill or if they were part of the dish shown on the bill. 12.15       Baked beans were initially chosen as an item to analyze but were not used in the survey at issue because the auditor noticed that the annual purchases of baked beans from the appellant's suppliers were lower than the quantities sold by the appellant, which affected the credibility of the purchase amounts reported by the appellant and showed that the appellant did not report all of its purchases. 12.16       The total net sales in the sampling were $32,836.27. 12.17       The auditor then calculated a ratio of 71.84 [final ratio, Exhibit I‑1, Tab 4, p. 6.4] by dividing the total net sales in the sampling, which were $32,836.27, by the total number of items sold in the sampling, which was 457 [final amount, Exhibit I‑1, Tab 4, p. 6.4] for the survey period. 12.18       The auditor also took into account the 10% price increase between 2002 and 2003, which lowered the ratio established for the survey period. 12.19       To reconstruct the appellant’s sales for the period in question, the auditor multiplied the ratio stated in subparagraph 12.16 by the total number of items purchased by the appellant during the survey period. 12.20       The auditor determined which items the appellant had purchased during the period in question using the supplier invoices provided by the appellant. 12.21       The auditor took into consideration take-out sales for which there might not have been meal bills, as well as losses and personal consumption as determined by the appellant (5% of the items purchased). 12.22       Adjustments were also made, following submissions on the draft assessment, to correct some errors. ... That fact was taken into consideration in her decision to reconstruct the sales. ... He filed as Exhibit A-3 all the dishes in which those buns are used and which were not taken into consideration in the audit ...

" had already been taken into consideration when establishing the appellant's personal assets; (admitted)   (o)                As a result, the Minister reduced the benefit conferred on the appellant from $53,671 to $33,811 for the 2002 taxation year. ... ", had already been taken into consideration when establishing the shareholder's personal assets;   (q)                As a result, the Minister reduced the appellant company's unreported income from $56,225 to $36,365 for its 2003 taxation year ...   [6]               The objections raised by the appellant are in regard to:   (i)                 the Minister establishing the reassessment for the 2002 taxation year after the end of the normal reassessment period;   (ii)               the Minister applying a penalty regarding the additional income for each of the 2002, 2003 and 2004 taxation years;   (iii)             the additional income for the taxation years in question, the specific elements of which are:     (a)     Cash on hand on March 31, 2002   [7]               The appellant claimed that the Minister did not take into consideration that he had around $40,000 in cash on March 31, 2002. ...

  [15]          The Appellant testified that, when he purchased his partner’s share of licence no. 36 in February 2003, his brother Marcel Corriveau loaned him $30,000 in three instalments of $10,000 in consideration of the promissory notes of which he did not adduce copies in evidence. ...   [17]          The Appellant’s accountant submitted three work sheets during the audit in order to narrow the gaps between his assessment of the Appellant’s net worth and that of the Respondent’s auditor and for the purpose of taking into consideration the amounts of money the Appellant had in hand, the $30,000 advanced by his brother, the $10,000 reimbursed by his son and finally a $3,000 reduction per year in the Appellant’s personal expenses. ... However, the explanations given only provided insight as to a portion of the total amount he stated he had in hand and, if I take into consideration the fact that he spent that money in 2002, in 2003 and in 2004, leaving him with only $1,000 in 2004, he would have had to have spent a portion of it in the years prior to 2001. ...