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Substance of the appeal The substance of the appeal raises the following issues: (a) Can a corporate dividend be considered a transfer of property? ... (a) Can a corporate dividend be considered a transfer of property? The appellant submitted that a payment of a cash dividend by the corporation cannot constitute a transfer of property. ...

It appears that this decision was not considered by Justice Rip.   [27]          In Burrard Yarrows, the taxpayer was a shipbuilder who had a contract with the Government of Canada to build two icebreakers and with the B. ... It ignores the clear inference that the drafters of the paragraph 12(1)(a) considered that amounts received on account of goods not delivered or services not rendered constituted amounts not earned ...

Subsection 55(1) of the Act is under the heading “Avoidance” and reads as follows: For the purposes of this subdivision, where the result of one or more sales, exchanges, declarations of trust, or other transactions of any kind whatever is that a taxpayer has disposed of property under circumstances such that he may reasonably be considered to have artificially or unduly (a) reduced the amount of his gain from the disposition, (b) created a loss from the disposition, or (c) increased the amount of his loss from the disposition, the taxpayer's gain or loss, as the case may be, from the disposition of the property shall be computed as if such reduction, creation or increase, as the case may be, had not occurred. For the purposes of this action, this section can be paraphrased to read: Where the result of one or more transactions of any kind is that the appellant has disposed of his shares in Bonavista under circumstances that the appellant may be considered to have artificially increased the amount of his loss from the sale of the shares, the appellant's loss shall be computed as if such increase had not occurred. ...

With respect, I believe the respondent's use of the corporate structure for the two ventures here requires that they be considered independently, and not simply be assumed to be of a piece with his other activities. ... Since the losses must be considered to have been incurred on capital account, the appeal must be allowed in this respect. ...

(Desjardins J.A. concurring): Facts and Issues 1 These are applications for judicial review of a decision of a Tax Court Judge which denied the Applicant the disability tax credit found in paragraphs 118.3(1)(a.1) and 118.4(1)(c) of the Income Tax Act (the “Act”). 2 Under paragraph 118.3(1)(a.1), a taxpayer is entitled to a credit for mental or physical impairment where (a) an individual has a severe prolonged mental or physical impairment, (a.1) the effects of the impairment are such that the individual's ability to perform a basic activity of daily living is markedly restricted, (a.2) a medical doctor, or where the impairment is an impairment of sight, a medical doctor or an optometrist, has certified in prescribed form that the individual has a severe and prolonged mental or physical impairment the effects of which are such that the individual's ability to perform a basic activity of daily living is markedly restricted, (b) the individual has filed for a taxation year with the Minister the certificate described in paragraph (a.2) and (c) no amount in respect of remuneration for an attendant or care in a nursing home, in respect of the individual, is included in calculating a deduction under section 118.2 (otherwise than because of paragraph 118.2(2)(b.1) for the year by the individual or by any other person. 3 Section 118.4 defines the nature of an impairment in the following terms: 118.4: Nature of impairment (1) For the purposes of subsection 6(16), sections 118.2 and 118.3 and this subsection, (a) an impairment is prolonged where it has lasted or can reasonably be expected to last, for a continuous period of at least 12 months; (b) an individual's ability to perform a basic activity of daily living is markedly restricted only where all or substantially all of the time, even with therapy and the use of appropriate device and medication, the individual is blind or is unable (or requires an inordinate amount of time) to perform a basic activity of daily living; (c) a basic activity of daily living in relation to an individual means (i) perceiving, thinking and remembering, (ii) feeding and dressing oneself, (iii) speaking so as to be understood, in a quiet setting, by another person familiar with the individual, (iv) hearing so as to understand, in a quiet setting, another person familiar with the individual, (v) eliminating (bowel or bladder functions), or (vi) walking; and (d) for greater certainty, no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. 4 In the cases at bar, the issue is to determine whether, through a severe and prolonged physical impairment, the Applicant's ability to walk and to feed and dress himself is so markedly restricted as to say that he is unable, or that it requires from him an inordinate amount of time, to perform a basic activity of daily living. 5 The Applicant was born in July 1935 with a congenital condition identified as spinal epiphyseal dysplasia. ... This submission of counsel for the Respondent begs for qualification. 21 Section 118.4 clearly states for greater certainty that no other activity, including working, housekeeping or a social or recreational activity, shall be considered as a basic activity of daily living. ...

-For the purposes of this Act, (a) a transfer, distribution or acquisition of property under or as a consequence of the terms of the will or other testamentary instrument of a taxpayer...or as a consequence of the law governing the intestacy of a taxpayer...shall be considered to be a transfer, distribution or acquisition of the property as a consequence of the death of the taxpayer.... ... It was enacted by S.C. 1985 c. 45, subsection 122(5) applicable with respect to transfers, distributions and acquisitions occurring after 1981. 248(8) Occurrences as a consequence of death-For the purposes of this Act, (a) a transfer, distribution or acquisition of property under or as a con- sequence of the terms of the will or other testamentary instrument of a taxpayer...or as a consequence of the law governing the intestacy of a taxpay er...shall be considered to be a transfer, distribution or acquisition of the property as a consequence of the death of the taxpayer.... ...

., [1948] S.C.R. 486; [1948] C.T.C. 195, is considered authority for the proposition that a taxpayer has the onus of proof with respect only to the findings or assumptions of fact made by the M.N.R. at the time of assessment. ... Accordingly, Cattanach, J. considered there was no onus on Pillsbury to disprove that fact. ...

That may be contrasted with the defendant's position which is that foreign corporations like Norsk are not even contemplated by the Convention, for one must already beinherently a resident—a domestic corporation—in order to be considered a "resident" within the meaning of article IV.1. ... It seems highly improbable that, as the defendant contends, those who negotiated the Convention would have chosen criteria which would have been considered inapplicable as a standard for taxation in one of the two high contracting parties to the Convention. ...

The plaintiff contends that it is the substance and reality of the transaction that should be considered, rather than the form in which it was expressed (The Horse Co-operative Marketing Association v. ... He considered that clause "to be vain tax-planning reasons by Hamill". ...

  [7]               The present situation can be distinguished in that the FCA appeal considered the 2003 and 2004 taxation years. ... Boyle J. whose conclusion was overturned by Ryer J., considered the same issue as the present one, but for the 2003 and 2004 taxation years ...