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CRA considered this structuring to be abusive and applied GAAR. Webb JA found that s. 112(3.1) would not have applied to grind the loss even if the NSULC had instead paid all the dividends on its common shares. ...

In dismissing a written argument of the taxpayer on appeal, Rennie JA stated (at para. 21): The Tax Court considered the test from Stewart to determine whether the properties were a source of income …. ...

"When, as in the present case, different parts of a same building are permanently used for what is considered to be two different purposes, the most important factor in determining the purpose for which the building is primarily used is the amount of space in the building that is used for each one of these two purposes. ...

For property to be considered a tax shelter, there must have been statements or representations made in connection with that property, as described in para. ...

She stated (at TCC para. 49): "There is just one interconnected transaction here, and no part of it can be considered a gift that the appellant gave in expectation of no return. ...

Although the taxpayer received the repayments rather than being paid salary, the trial judge had found that "at the time of acquisition [of the loans], assignment of the loans to him was of little interest to him and not a primary consideration," and the taxpayer's gain should be considered to have arisen fortuitously rather than as a result of a carefully realized plan for the realization of speculative profits. ...

In commenting on the test in s. 256(5.1) Noël J.A. stated (at p. 6640) that: "Whatever factors are considered, they must show that a person or group of persons has the clear right and ability to change the board of directors of the corporation in question or to influence in a very direct way the shareholders who would otherwise have the ability to elect the board of directors... in other words, the evidence must show that the decision-making power of the corporation in fact lies elsewhere than with those who have de jure control. ...

Robertson J.A. indicated (at p. 5465) that the Beamish decision (90 D.T.C 1584) and the Cull decision (87 DTC 5322) could "no longer be considered persuasive authorities". ...

. … [T]he agreement to pay the tenant inducement payment of $1.2 million was of no legal consequence and.. it cannot be considered an outlay or expense made for the purpose of gaining or producing income…. ...

The analysis of McDonald J.A. indicated (at p. 5126) that the taxpayer would have been considered to have disposed of subrogated debts acquired by virtue of making payments pursuant to its guarantee notwithstanding its agreement, in advance, to waive its claims of subrogation, given that "waiver 'presupposes the existence of a right to be relinquished'". ...