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That, in addition to consideration of the taxpayer’s whole course of conduct while in possession of the asset, is what in the end generally influences the finding of the court. 16 … This has meant, in some cases, that even where it could be established that a taxpayer’s main intention was investment, a gain on the sale of the asset would be held taxable as income if the court believed that, at the time of acquisition, the taxpayer had in mind the possibility of selling the asset if his investment project did not, for whatever reason, materialize. … [13] The Court is require to analyze these factors through the specific facts and circumstances before it. ... Wang acquired and sold the property in the course of business or otherwise (which is the countervailing consideration in the Act), the criteria of the nature of the property is not particularly determinative in this appeal or in any other concerning a residential housing unit. ... SUMMARY, CONCLUSION AND COSTS [34] Three overriding considerations figure prominently in the Court’s reasons for judgment in this appeal. [35] Ms. ...

For this purpose, the nature of the collateral attack is, of course, relevant to determine not whether it raises an excess or lack of jurisdiction on the part of the agent or official who issued the administrative order, but rather to determine whether the attack involves considerations that fall within the jurisdiction conferred by statute on the appeal tribunal. ... Thus, where an attack on an order requires the consideration of factors that fall within the specific expertise of an administrative appeal tribunal, this is a strong indication that the legislature wanted that tribunal to decide the question rather than a court of penal jurisdiction. Conversely, where an attack on an order is based on considerations which are foreign to an administrative appeal tribunal’s expertise or raison d’être, this suggests, although it is not conclusive in itself, that the legislature did not intend to reserve the exclusive authority to rule on the validity of the order to that tribunal. ...

Coseka entered into a written option agreement with an arm’s length company, 341063 Alberta Ltd. (“341063”) whereby in consideration of $15,000 it gave 341063 an option exercisable prior to December 30, 1986 to purchase all of the issued and outstanding 2,050 common, 240 preferred, 150 preferred series B and 1,396 preferred series C shares of Coseka U.S. for a purchase price of $0.01 per share. 4. 341063 was owned by Phelps Drilling International Limited (“Phelps”), which was owned to the extent of 24% by Bramalea Limited. ... The bank released them on December 9, 1986 in consideration of Coseka’s agreement to pay it one-half of the net amount received by Coseka for the shares of 346045 as well as one half of the amount received under a similar transaction with Westbridge Capital Corporation relating to the rest of the shares of Coseka U.S. 9. ... However if A Corp, were to sell the shares of X Corp, to C Corp, at a loss (and not take back shares, but instead some other form of consideration) A Corp.’s loss would be denied under paragraph 85(4)(a), and the effect of the denial of its loss would not be alleviated under paragraph 85(4)(b) because it owned no shares in C Corp. ...

Analysis and Decision The relevant provisions of the Act, so far as material, are as follows: 20(1) Notwithstanding paragraphs 18(1)(a), (b) and (h), in computing a taxpayer’s income for a taxation year from a business or property, there may be deducted such of the following amounts as are wholly applicable to that source or such part of the following amounts as may reasonably be regarded as applicable thereto: (c) an amount paid in the year or payable in respect of the year (depending on the method regularly followed by the taxpayer in computing the taxpayer’s income), pursuant to a legal obligation to pay interest on (i) borrowed money used for the purpose of earning income from a business or property... 39(1) For the purposes of this Act, (c) a taxpayer’s business investment loss for a taxation year from the disposition of any property is the amount, if any, by which the taxpayer’s capital loss for the year from a disposition after 1977 (i) to which subsection 50(1) applies,... of any property that is (iii) a share of the capital stock of a small business corporation, or (iv) a debt owing to the taxpayer by a Canadian-controlled private corporation... that is (A) a small business corporation,... exceeds the total of... 40(2) Notwithstanding subsection (1), (g) a taxpayer’s loss, if any, from the disposition of a property, to the extent that it is (11) a loss from the disposition of a debt or other right to receive an amount, unless the debt or right, as the case may be, was acquired by the taxpayer for the purpose of gaining or producing income from a business or property (other than exempt income) or as consideration for the disposition of capital property to a person with whom the taxpayer was dealing at arm’s length,... is nil;... 50(1) For the purposes of this subdivision, where (a) a debt owing to a taxpayer at the end of a taxation year... is established by the taxpayer to have become a bad debt in the year, or (b) a share... the taxpayer shall be deemed to have disposed of the debt or the share, as the case may be, at the end of the year for proceeds equal to nil and to have reacquired it immediately thereafter at a cost equal to nil. ... Interest expense on money borrowed to be loaned at a reasonable rate of interest, or to honour a guarantee which had been given for adequate consideration, is generally deductible. ... As to the ABILs claimed, the Appellant did not convey the debts to a third party for nil or minimal consideration nor did he forgive the debt or exhaust all legal remedies to get paid. ...

No exhaustive list has been compiled and perhaps no exhaustive list can be compiled of considerations which are relevant in determining that question, nor can strict rules be laid down as to the relative weight which the various considerations should carry in particular cases. ... Taking into consideration the overall evidence, I am satisfied that the Appellant exercised “control” with respect to where, when and how the work was to be performed to the degree required under these particular circumstances. ...

On about March 15, 1991, the Appellant and his former spouse entered into an agreement whereby, inter alia, the Appellant agreed to pay his former spouse the sum of $300,000.00 in consideration of which the former spouse agreed to waive all right, title and interest to the Appellant’s assets, including, but not limited to, the Samson Street Apartment. ... Argument on behalf of the Appellant The Appellant argued that the disallowed amount was claimable on the basis of subsections 20(1) and (3) of the Income Tax Act (the “Ac/”), and taking into consideration section 43 of the Family Relations Act, R.S. 1979, c. 121 for the Province of British Columbia. ... On the basis of the separation agreement entered into between the parties on the 15th day of March 1991, it is clear that the wife, in consideration for the $300,000.00, gave up an interest in not only the income earning asset which was the Samson Street property, but also an interest in the following articles: (1) a 1966 Volkswagen Sedan; (2) Furniture located at Jura Road; (3) a Santa Cruz Utility Trailer; (4) an Odette Utility Trailer; (5) a 1977 Nor-Sea Sailboat; (6) various REERs and investments registered in his name; (7) an interest in Peninsula Firewood Ltd. and certain bank accounts. ...

Counsel for the appellant submits that the award of costs should take into consideration the following facts: I. ... None of the factors referred to in Section 147(3) for consideration in the awarding of costs were present in this appeal. 18. ... Such a direction must be based on relevant considerations and must not be made on an arbitrary basis. ...

That decision was based on personal considerations, especially because he wished his children to be educated in Ontario. 5.09 In 1969, because of the social climate in Quebec, Mrs Marie Louise Warner also wished to live in Ontario, particularly in Toronto, if I am not mistaken. ... In addition, if tax considerations were a major reason for the creation of the second company, I certainly would not be paying tax personally on $65,000 to $145,000 while my wife receives only $5,000 to 7,000 in the same period. ... The lender had himself borrowed this amount from the appellant company; 3) Mrs Warner had limited practical experience in the field of roofing (paragraph 5.07 of the Facts); 4) The fact that the main and only shareholder of Covertite (Ontario) Limited is the spouse of the main shareholder of the appellant company; 5) The fact that the appellant company during the years preceding 1971 consistently adjusted its salaries and bonuses so that the net profit remained just below the $35,000 at which a higher tax rate would have been payable showed the importance of tax considerations in the appellant’s activities (paragraphs 5.18 and 5.19 of the Facts). ...

In James F Kennedy v MNR, [1973] CTC 437; 73 DTC 5359, the learned Chief Justice of the Federal Court of Appeal made the following succinct comment at pages 440 and 5361 respectively: In my view, when a debt is created from a company to a shareholder for no consideration or inadequate consideration, a benefit is conferred. ... I would suggest to counsel that such a conclusion presupposes that a “debt was created”, and that “consideration” can be equated with “security”. ...

L’évaluateur s’en tient donc à la valeur de $1.50 le pi ca, soit la valeur de la transaction du 7 juillet 1971 (voir paragraphe 3.14 des faits, vente 24-b). 3.23 Concernant les rajustements, M Giguère accorde 30% en considération du frontage réduit du comparable et l’avantage du coin de rue du terrain sujet. ... Cet élément doit être pris en considération dans le présent cas. Il est difficile cependant d’en mesurer l’importance. ... La Commission en prend néanmoins considération et suit la règle de grande prudence recommandée par la jurisprudence citée plus haut. 4.3.4 En matière d’évaluation, science toujours en évolution et qui s’appuie souvent sur des impondérables, la Commission a bien conscience qu’il n’est pas facile de toujours justifier une position. ...