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Indeed, my understanding is that the low rent charged to Alcide Lavictoire was the consideration given by the appellants for the transfer of the Property at a price below fair market value. ... It was a personal arrangement that benefited each party: the appellants acquired a property at a price below fair market value and the vendor could stay in the house as long as he lived for no or very low consideration. ...

  [7]      In making his decision, the Minister relied on the following assumptions of fact, which the appellant admitted or denied:   [TRANSLATION]   (a)        the payer was incorporated in May 2000; (admitted)   (b)        the payer's activities consisted in operating a restaurant which sold prepared dishes, meals and buffets and in operating a french fry stand adjacent to the restaurant; (admitted)   (c)        the payer operated year-round; (admitted)   (d)        according to the share ledger, the shareholders of the payer were purportedly: (admitted)               the appellant                             100 voting shares             Denise Langlais             100 voting shares             Ginette Bonneau                       100 voting shares   (e)        Denise Langlais is the appellant's spouse; (admitted)   (f)         before the period in issue, the appellant's son, Pierre Lizotte, was the owner of the business and intended to close it because it was operating at a loss; (admitted)   (g)        the appellant, an unemployed forestry technician, asked his son to entrust the management of the business to him; (denied)   (h)        from December 1999 to June 2000, while receiving employment insurance benefits, the appellant rendered services to the business 40 hours a week without any remuneration reported during that period; (denied)   (i)         on May 2, 2001, the Employment Insurance Board of Referees rendered the decision that the appellant was not unemployed but was operating his business on a full-time basis; (admitted)   (j)         in June 2000, the payer purportedly purchased the business of Pierre Lizotte for $106,000; (denied)   (k)        the payer refused to provide the respondent with documents; (denied)   (l)         an amount of $11,000 was deducted from the amount owed on the purchase of the business, that amount representing the consideration to the appellant for the services rendered without remuneration from December 1999 to June 2000; (denied)   (m)       the $11,000 was converted into a capital payment for the shares of the appellant and his spouse Denise Langlais amounting to $5,500 each; (admitted)   (n)        Denise Langlais paid nothing for her purported shares; (admitted)   (o)        Denise Langlais signed nothing in the company's book; (admitted)   (p)        Denise Langlais knew nothing of the payer's financial activities; (admitted)   (q)        Ginette Bonneau told the respondent that she did not know the purchase price of the business, whether there were any loans or the appellant's conditions of employment; (admitted)   (r)        Ginette Bonneau declared that she did not manage the business; she had merely made an investment; (admitted)   (s)        the minutes of the payer's incorporation were not signed by Denise Langlais or Ginette Bonneau; (admitted)   (t)         Denise Langlais and Ginette Bonneau never signed the payer's share purchase warrants; (admitted)   (u)        there were no minutes after of the corporation was formed; (admitted)   (v)        the payer had no corporate life; (denied)   (w)       the appellant alone made all the decisions for the payer without consulting the other two shareholders; (denied)   (x)        the appellant was the only shareholder who lent money ($10,000) to the payer at the time the french fry stand was built by personally repaying some of the payer's suppliers; (admitted)   (y)        the appellant and the payer provided no proof of payment of the appellant's wages; (denied)   (z)        on October 9, 2000, the payer issued the appellant a record of employment for the period commencing on June 19, 2000, and ending on September 30, 2000, stating a shortage of work as the reason for the layoff; (admitted)   (aa)      after he was laid off, the appellant continued to render services to the payer without any reported remuneration; (admitted)   (bb)      the appellant's purported periods worked did not coincide with the periods actually worked. ...   [39]     There is no evidence that an amount of $11,000 was deducted from the amount owed on the purchase of the business, that amount representing the consideration to the appellant for the services rendered without remuneration during the period in issue ...

In so reassessing the Appellant, the Minister made the following assumptions of fact: (a)         during the 1997 and 1998 taxation years, the Appellant was employed by the Employer as a supervisor; (b)         the Employer paid the Appellant an hourly wage, paid bi-weekly; (c)         the Employer reimbursed the Appellant for expenses incurred by the Appellant while working out of town; (d)         the Appellant's expenses that were reimbursed by the Employer included, but were not limited to, meals, hotels and gas; (e)         the Employer supplied materials used by the Appellant in performing his duties; (f)          the Appellant was required to incur the cost of getting to the local work sites where he performed his duties; (g)         the Appellant supplied his own hand tools that were required to perform his duties; (h)         the Employer provided the larger tools specific to the trade that were required by the Appellant to perform his duties; (i)          the Employer provided any rented equipment that was required by the Appellant to perform his duties; (j)          the Employer guaranteed the quality of the work performed by the Appellant; (k)         the Employer required that the Appellant perform his duties personally; (l)          the Employer paid premiums for workers' compensation in respect of the Appellant; (m)        the workers supervised by the Appellant were employees of the Employer; (n)         the Appellant was required to discuss with the Employer any hiring or laying off of any of the Employer's employees; (o)         the Appellant was hired by the Employer on an indeterminate basis; (p)         the Employer was aware that the circumstances of the Appellant's employment were such that the Appellant was probably employed under a contract of service rather than a contract for services; (q)         the duties performed by the Appellant were the same as other supervisors of the Employer that were employed under a contract of service; (r)         the Employer went along with the Appellant's request to be treated as if he was employed under a contract for services as this is what the Appellant had wanted and as the Employer did not want to lose a valuable employee; (s)         the duties performed by the Appellant were an integral part of the business of the Employer; (t)          the Appellant was employed pursuant to a contract of service with the Employer; (u)         the Appellant received remuneration in the amount of $48,680.14 in 1997 and $46,507.27 in 1998 from the Employer in consideration for the duties performed by him; (v)         other than in respect of repairs and maintenance expenses incurred on his own vehicle, the Appellant was not required by the Employer to pay for any expenses incurred in the performance of his duties; (w)        the Appellant did not keep track of the kilometres that were travelled by him for the purpose of earning income from the Employer; (x)         the Appellant submitted receipts to the Minister in respect of gas, vehicle repairs and maintenance, meals and entertainment and insurance for each year as follows: Item 1997 1998 Vehicle- Repairs/Maintenance $ 2,946.35 $ 1,577.08 Vehicle- Gas 3,229.78 5,163.00 Vehicle- Insurance 0.00 881.00 Meals and Entertainment 0.00 4,449.29 Total $ 6,176.13 $12,070.37 (y)         other than in respect of the receipts submitted as stated in paragraph 11(x) above, the Appellant did not submitted any other receipts, vouchers or other documentation in support of the expenses claimed as set out in Schedules A and B; (z)         other than in respect of the receipts submitted as stated in paragraph 11(x) above, the expenses claimed as set out in Schedules A and B were not proven to have been incurred; (aa)       repairs and maintenance expenses claimed in excess of $500.00 for each year were not reasonable in the circumstances; and (bb)       expenses in excess of the amount allowed, if incurred, were not incurred for the purpose of earning income from the Employer, rather they were the personal or living expenses of the Appellant. [4]      The Appellant disagrees with any of the foregoing allegations and assumptions that directly or indirectly point to a conclusion that he was an employee as opposed to a contractor. [5]      In his Notice of Appeal the Appellant indicates that he was contracted for his knowledge and organizational skills, set his own hours of work and did his own hiring and firing of employees on the job site without discussion with anyone. ... This ignores the fact that, as the Appellant has testified, in years other than those under consideration the Appellant had contracts with parties other than Kelsey; 5.        ...

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. ...

Those provisions read as follows: 298. (1) Period for assessment — Subject to subsections (3) to (6.1), an assessment of a person shall not be made under section 296 (a) in the case of (i) an assessment of net tax of the person for a reporting period of the person,... more than four years after the later of the day on or before which the person was required under section 238 to file a return for the period and the day the return was filed; (b) in the case of an assessment of tax payable by the person under Division II in respect of a supply of real property made by way of sale to that person by a supplier in circumstances in which subsection 221(2) applies, more than four years after the later of the day on or before which the person was required to file the return in which that tax was required to be reported and the day the return was filed; (c) in the case of an assessment of tax payable by the person under Division II, other than tax referred to in paragraph (b), more than four years after the tax became payable;...                 298(4) Idem — An assessment in respect of any matter may be made at any time where the person to be assessed has, in respect of that matter, (a) made a misrepresentation that is attributable to the person's neglect, carelessness or wilful default; (b) committed fraud (i) in making or filing a return under this Part, (ii) in making or filing an application for a rebate under Division VI, or (iii) in supplying, or failing to supply, any information under this Part; or (c) filed a waiver under subsection (7) that is in effect at that time. 298(5) Idem — Where, in making an assessment, the Minister determines that a person has paid in respect of any matter an amount as or an [sic] account of tax payable or net tax remittable for a particular reporting period of the person that was in fact payable or remittable for another reporting period of the person, the Minister may at any time make an assessment for that other period in respect of that matter.... [16]          Subsection 296(1) of the Act provides as follows: 296. (1) Assessments — The Minister may assess: (a) the net tax of a person under Division V for a reporting period of the person, (b) any tax payable by a person under Division II, IV or IV.1, (c) any penalty or interest payable by a person under this Part, (d) any amount payable by a person under any of paragraphs 228(2.1)(b) and (2.3)(d) and section 230.1, and (e) any amount which a person is liable to pay or remit under subsection 177(1.1) or Subdivision a or b.1 of Division VII, and may reassess or make an additional assessment of tax, net tax, penalty or interest. [17]          Subsection 168(1) [3] provides that the GST in respect of a taxable supply is payable by the recipient on the earlier of the day the consideration for the supply is paid and the day the consideration for the supply becomes due. ...

Subsection 234(2) of the Act provides that a registrant who credits a person with an amount as a rebate may deduct this amount in computing his net tax. [11]     For the period in question, subsections 252.1(8) and 234(2) of the Act read as follows: Rebate paid by registrant (8)         Where (a)         a registrant makes a supply of short-term accommodation or a tour package that includes short-term accommodation to a non-resident recipient who is the consumer of the accommodation or who is acquiring the accommodation or tour package for supply in the ordinary course of a business of the recipient of making such supplies, (b)         the registrant pays to, or credits in favour of, the recipient an amount on account of a rebate under subsection (2) or (3) to which the recipient would be entitled in respect of the accommodation if the recipient had paid the tax in respect of the supply and had satisfied the conditions of section 252.2, (c)         the amount paid or credited is equal to (i)          in the case of a supply of a tour package, the amount that would be determined in respect of the supply under paragraph (5)(b), and (ii)         in the case of a supply of short-term accommodation that is not part of a tour package, the tax paid by the recipient in respect of the supply, and (d)         in the case of a rebate under subsection (2), (i)          payment of the consideration for the supply is made at a place outside Canada at which the registrant, or an agent of the registrant, is conducting business, or (ii)         where the accommodation is supplied as part of a tour package that includes other property or services (other than meals or property or services that are provided or rendered by the person who provides the accommodation and in connection with it), a deposit of at least 20% of the total consideration for the tour package is paid (A)               by the recipient to the registrant at least 14 days before the first day on which any short-term accommodation included in the tour package is made available under the agreement for the supply of the tour package, and (B)        by means of a credit card or charge card issued by, or a cheque, draft or other bill of exchange drawn on an account outside Canada with, a non-resident institution that is a bank, cooperative credit society, trust company or similar institution, the registrant may claim a deduction under subsection 234(2) in respect of the amount paid or credited, and the recipient is not entitled to any rebate or to any refund or remission of tax in respect of the accommodation. ...

That is, the agreement (Exhibit A-6), signed only by the Appellant's former spouse, reflects only an offer made by him to pay a fixed sum in consideration of the Appellant’s terminating her maintenance claim. ... There was clearly no release consideration being extended by the Appellant in 1997 at the time the subject payments were made. ...

The appellant may adduce facts constituting a prima facie case which remains unanswered; but in considering whether this has been done it is important not to forget, if it be so, that the facts are, in a special degree if not exclusively, within the appellant's cognizance; although this last is a consideration which, for obvious reasons, must not be pressed too far. [13]          One should not press the conventional rule about the appellant having the onus so far that one loses sight of its original purpose and of all considerations of procedural fairness. ...

The offer has been rejected by the appellant. [9]            The appellant's notice of motion is as follows TAKE NOTICE THAT the applicant is making a Motion for Direction by the Court pursuant to subsection 4(2) of the Tax Court of Canada Rules (General Procedure) and requests that the Court dispose of this motion upon consideration of written representation and without appearance of the parties pursuant to subsection 69(1) of the Tax Court Rules (General Procedure). ... THE FOLLOWING DOCUMENTARY EVIDENCE is referred to for purposes of consideration by the Court in disposing of this motion. ·               Letter dated May 16, 2001, addressed to my attention by Suzanne M. ...

.'' Our consideration must not be limited simply to the power of control but must extend to the way that power is exercised. ... Detailed control over a professional employee as to the manner in which work is done is necessarily minimal but the material consideration is that the right of control exists even though it is sometimes impossible to exercise and is rarely needed to be exercised.'' The appellant company, therefore, had adequate control over the worker. [12]     From September 29, 1997, until his dismissal on September 25, 1998, the worker was paid a salary set by the company: $485 for a 40-hour week. ...