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We would also emphasize that although the reasonable expectation of profit is a factor to be considered at this stage, it is not the only factor, nor is it conclusive.  The overall assessment to be made is whether or not the taxpayer is carrying on the activity in a commercial manner. …   [16]     Having regard to the first question in the two-stage approach, I am satisfied that the Appellant’s efforts as a licensed real estate agent could not be considered a hobby or other personal endeavour. ...

(iii) as an inducement, whether as a grant, subsidy, forgivable loan, deduction from tax, allowance or any other form of inducement, or (iv) as g refund, reimbursement, contribution or allowance or as assistance, whether as a grant, subsidy, forgivable loan, deduction from tax, allowance or any other form of assistance, in respect of (A) an amount included in, or deducted as, the cost of property, or (B) an outlay or expense, to the extent that the particular amount (v) was not otherwise included in computing the taxpayer’s income, or deducted in computing, for the purposes of this Act, any balance of undeducted outlays, expenses or other amounts, for the year or a preceding taxation year, (vi) except as provided by subsection 127(11.1), (11.5) or (11.6), does not reduce, for the purpose of an assessment made or that may be made under this Act, the cost or capital cost of the property or the amount of the outlay or expense, as the case may be, (vii) does not reduce, under subsection (2.2) or 13(7.4) or paragraph 53(2)(s), the cost or capital cost of the property or the amount of the outlay or expense, as the case may be, and (viii) may not reasonably be considered to be a payment made in respect of the acquisition by the payer or the public authority of an interest in the taxpayer or the taxpayer’s business or property.^ [3] [Emphasis mine.] ... R., supra, the Federal Court of Appeal, per Létourneau J.A., considered the taxpayer’s argument that a distinction must be made between the English words “reimbursement” and “refund”. ...

Some of the factors that will be considered when determining whether the substance of a transaction is a lease or sale are listed below. ... (4) Does the term of the lease correspond substantially to the estimated useful life of the property with the lessee obligated to pay costs such as taxes, insurance, and maintenance which are usually considered incidental to ownership? ...

THE TAX COURT’S JUDGMENT   [7]                The Tax Court considered two primary issues: (i) whether subsection 84(2) applied to the transactions; and (ii) whether, in the alternative, the general anti-avoidance rule (GAAR) in section 245 of the Income Tax Act applied to achieve the same result.          ... He reasoned that the provision “ensures that it is only a shareholder at the time of the distribution or appropriation who can be deemed to be the recipient of a dividend” (at paragraph 50) and that “[t]he express language of ‘in any manner whatever’ does not redirect to whom the dividend was paid” (at paragraph 48). [10]            The judge considered McNichol v. ...

Justice Bastin considered in ascertaining the date of acquisition was not the date on which the shares were fully paid nor the date on which the share certificates were issued but the date on which the taxpayer established a binding proprietary right in the legal ownership of the shares. ... This is because “value" as it is used in paragraph 7(1)(a) is normally considered to import the concept of fair market value — that which a willing buyer would pay a willing seller in an open market. ...

Such a reason at best has, in my opinion, very little weight or validity by itself and I think has even less ‘when considered in the light of the legal obligation upon the person making the return to be accurate and truthful on pain of severe penalties both for untruthfulness and for omissions. ... But be that as it may, the confidential nature of income tax returns in this country has been considered by the Supreme Court in R v Snider, [1954] CTC 255; 54 DTC 1129, and though that case is distinguishable from the present, first, on the ground that the questions before the Court related to the production of income tax returns in criminal as opposed to civil proceedings and, second, on the ground that there the questions also related solely to the income tax returns of the accused person, it appears to me that the comments of several members of the Court offer a guide to the importance to be attached to the alleged confidential character of such returns. ...

It reads:                 45(1)        The repeal of an enactment in whole or in part shall not be deemed to be or to involve a declaration that the enactment was previously in force or was considered by Parliament or other body or person by whom the enactment was enacted to have been previously in force ...                 (2)            The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended ...

That is shorthand for the general proposition that if, as a matter of fact, the prospect of resale at a profit is an operating motivation for the acquisition of property, then the property must be considered to have been acquired on income account, and any gain on the sale of the property must be income. [4] That is so regardless of the use made of the property after its acquisition, or the reason for its sale. ... I have considered whether it is possible to infer from other circumstances whether any secondary intention was present. ...

It must therefore be confirmed that for the purpose of this appeal, that is not considered to be the case. ... Had the Tax Review Board considered the applicability of section 67, this action might never have been commenced. ...

The first question that has to be considered on this section 28 application is whether the decision attacked is a decision contemplated by subsection 28(1) of the Federal Court Act*. ... The further question to be considered is whether the Minister’s decision should be set aside as having been based on an error of law. ...