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“K. von Finckenstein”              JUDGE Annex 1   Income Tax Act, R.S.B.C. 1996, c.215, as amended. (4)                  1(1) In this Act: “collection agreement” means an agreement entered into under section 69(1);   “Federal Act” means the Income Tax Act (Canada);   “federal minister” means, (a)       in relation to the remittance of any amount as or on account of tax payable under this Act, the Receiver General for Canada, and (b)       in relation to any other matter, the Minister of National Revenue; “ minister ” means, (a)       if a collection agreement is not in effect, the Provincial minister, or (b)       if a collection agreement is in effect, the federal minister; 1(7) If a provision, in this subsection referred to as “ that section ”, of the federal Act or the federal regulations is made applicable for the purposes of this Act, that section, as amended from time to time before or after this subsection came into force, applies with such modifications as the circumstances require for the purposes of this Act as though it had been enacted as a provision of this Act, and in applying that section for the purposes of this Act, in addition to any other modifications required by the circumstances, (a)       a reference in that section to tax under Part I of the federal Act must be read as a reference to tax under this Act, (b)       if that section contains a reference to tax under any of Parts   I.1 to XIV of the federal Act, that section must be read without reference to tax under any of those Parts and without reference to any portion of that section that applies only to or in respect of tax under any of those Parts, (c)        a reference in that section to a particular provision of the federal Act that is the same as or similar to a provision of this Act must be read as a reference to the provision of this Act, (d)       any reference in that section to a particular provision of the federal Act that applies for the purposes of this Act must be read as a reference to the particular provision as it applies for the purposes of this Act, (e)       if that section contains a reference to any of Parts   I.1 to XIV of the federal Act or to a provision in any of those Parts, that section must be read without reference to that Part or without reference to that provision, as the case may be, and without reference to any portion of that section that applies only because of the application of any of those Parts or the application of a provision in any of those Parts, (f)         subject to subsection   (7.1), if that section contains a reference to the Bankruptcy and Insolvency Act (Canada), that section must be read without reference to the Bankruptcy and Insolvency Act (Canada), (g)       subject to paragraph (h), a reference in that section to the federal Act or the federal regulations must be read as including a reference to this Act or a regulation made under this Act, (h)        a reference in that section to the words “ under this Act or under an Act of a province with which the Minister of Finance has entered into an agreement for the collection of taxes payable to the province under that Act ” must be read as a reference to this Act, and (i)         subject to subsections (8) and (8.1), a reference in that section to a word or expression set out in Column 1 of the following table must be read as a reference to the word or expression set out opposite it in Column 2: TABLE--------------------------------------------------------------------------- Column 1                              Column 2--------------------------------------------------------------------------- Her Majesty Her Majesty in Right of the Province of British Columbia Canada British Columbia Receiver General finance minister Commissioner of Customs           and Revenue  deputy head Deputy Attorney General of Canada Deputy Attorney General of British Columbia Tax Court of Canada Supreme Court of British Columbia Tax Court of Canada Act Supreme Court Act Federal Court of Canada Supreme Court of British Columbia Federal Court Act Supreme Court Act Registrar of the Tax Court of Canada Registrar of the Supreme Court of British Columbia Registry of the Federal Court Registry of the Supreme Court of British Columbia Criminal Code Offence Act Canada Customs and Revenue Agency ministry Minister Provincial minister   1(8.1) If a collection agreement is in effect, in applying the federal Act for the purposes of this Act, (a)       a reference to the Commissioner of Customs and Revenue in the federal Act must continue to be read as a reference to the Commissioner of Customs and Revenue, (b)       a reference to the Minister in the federal Act must continue to be read as a reference to the Minister, and (c)        a reference to the Receiver General in the federal Act must continue to be read as a reference to the Receiver General.... 25.1(1) In this section: “ assistance ” in relation to a taxpayer means an amount, other than an amount deemed to have been paid under this section, that would be included under section 12(1)(x) of the federal Act in computing the income of the taxpayer for any taxation year if that section were read without reference to subparagraphs (v) to (vii) of that section 12(1)(x);   “ eligible taxpayer ” means, (a)       an individual subject to tax under section 2(1)(a), or (b)       a corporation that is subject to tax under section 2(2), other than a corporation all or part of whose taxable income is at any time in the taxation year exempt from tax under Part 1 of the federal Act or a corporation that, at any time in the taxation year; (i)         is exempt from tax under section 27, (ii)        is controlled directly or indirectly in any manner whatever by one or more persons all or part of whose taxable income is exempt from tax under section 27 of this Act or under Part 1 of the federal Act, (iii)       is prescribed, under the federal Act, to be a labour-sponsored venture capital corporation for the purpose of section 127.4 of that Act, (iv)       has registered an employee share ownership plan under section 2 of the Employee Investment Act, (v)        is an employee venture capital corporation registered under section 8 of the Employee Investment Act, or (vi)       is a small business venture capital corporation registered under section 3 of the Small Business Venture Capital Act; “ excluded expense ” of a taxpayer for a taxation year means, (a)       a Canadian development expense within the meaning of section 66.2(5) of the federal Act, (b)       an expense that may reasonably be considered to be related to a mine that has come into production in reasonable commercial quantities or to a potential or actual extension of such a mine, (c)        a Canadian exploration and development overhead expense within the meaning of the federal regulations, (d)       an outlay or expense described in paragraph (j) or (l) of the definition of “ Canadian exploration expense ” in section 66.1(6) of the federal Act, (e)       a cost of, or for the use of, seismic data referred to in section 66(12.6)(b.1) of the federal Act, (e.1)    an outlay or expense incurred by the taxpayer in the course of earning income in the taxation year if any of the income is exempt income, as defined in section 248(1) of the federal Act, or is exempt from tax under Part 1 of the federal Act, (f)         an expense incurred in drilling or completing an oil or gas well, in building a temporary access road to an oil or gas well or in preparing a site in respect of an oil or gas well, (f.1)     personal or living expenses of the taxpayer, other than travel expenses incurred by the taxpayer while away from home in the course of carrying on the activity described in paragraph (c) of the definition of “ qualified mining exploration expense ”, (f.2)     an amount that, under an agreement described in section   66(12.6) of the federal Act and made after July   30, 2001, is renounced in accordance with that section, in respect of an expense, (i)         incurred after July   30, 2001 and before January   1, 2006, or (ii)        incurred after December   31, 2005 and before January   1, 2007 and to which section   66(12.66) of the federal Act applies. ... (h)        any other outlay or expense prescribed under subsection (8); “ mineral resource ” means a mineral resource within the meaning of section 248(1) of the federal Act; “ personal or living expenses ” means personal or living expenses within the meaning of section 248(1) of the federal Act; “ qualified mining exploration expense ” of a taxpayer means any expense, other than an excluded expense, that is incurred, (a)       by the taxpayer, (b)       after July 31, 1998 and before January 1, 2017, (c)        for the purpose of determining the existence, location, extent or quality of a mineral resource in British Columbia, including any expense incurred in the course of (i)         prospecting, (ii)        carrying out geological, geophysical or geochemical surveys, (iii)       drilling by rotary, diamond, percussion or other methods, or (iv)       trenching, digging test pits and preliminary sampling, and (d)       in respect of goods or services acquired by the taxpayer that are all or substantially all provided in British Columbia, to the extent that the expense is reasonable in the circumstances and is not an expense in relation to which a tax credit under this section has been claimed by another person.... 25.1(2) Subject to subsection (3), an eligible taxpayer may claim a mining exploration tax credit for a taxation year equal to the total of, (a)       the amount determined under subsection (4), and (b)       the amount equal to the total of all amounts each of which is an appropriate portion determined under subsection (4.1) in respect of a partnership of which the taxpayer was a member in the taxation year as provided for in that subsection. 25.1(3) An eligible taxpayer who has made a deduction in accordance with section 17 for a taxation year must not claim a tax credit under this section for the same taxation year. 25.1(4) An eligible taxpayer may claim for a taxation year 20% of the amount by which (a)       the total of the qualified mining exploration expenses incurred by the taxpayer in the taxation year exceeds, (b)       all amounts of assistance that can reasonably be considered to be in respect of amounts included in the total referred to in paragraph (a) and that, at the time of filing of the taxpayer's return of income for the taxation year, (i)         the taxpayer has received or is entitled to receive or can reasonably be expected to receive, (ii)        have not been repaid under a legal obligation to do so, and (iii)       have not otherwise reduced the total referred to in paragraph (a); 25.1(4.1) If in a taxation year an eligible taxpayer is a member of a partnership, other than a specified member as defined in section 248(1) of the federal Act, the eligible taxpayer may claim for the taxation year the appropriate portion of 20% of the amount by which: (a)       the total of the qualified mining exploration expenses incurred by the partnership for its taxation year ending in the taxation year of the taxpayer exceeds, (b)       all amounts of assistance that can reasonably be considered to be in respect of amounts included in the total referred to in paragraph (a) and that, on or before the filing-due date for the taxation year of the partnership, (i)         the partnership has received or is entitled to receive or can reasonably be expected to receive, (ii)        have not been repaid under a legal obligation to do so, and (iii)       have not otherwise reduced the total referred to in paragraph (a). 25.1(4.2) For the purpose of determining the amount under subsection (4.1) in respect of a partnership, (a)       in subsection (1), in the definitions of “ assistance ”, “ excluded expense ” and “ qualified mining exploration expense ”, the references to “ taxpayer ” must be read as “ partnership ”, (b)       in subsection (1), in the definition of “ qualified mining exploration expense ”, (i)         the reference to “ July 31, 1998 ” in paragraph (b) must be read as “ March 31, 2003 ”, and (ii)        the phrase “ another person ” must be read as “ another person other than an eligible taxpayer that is a member of the partnership ”, and (c) the amount is determined as if (i)         the partnership were a person, (ii)        its fiscal period were its taxation year, and (iii)       its filing-due date were its filing-due date for the year if it were a corporation. 25.1(4.3) For the purposes of this section, the appropriate portion is that portion that may reasonably be considered to be the eligible taxpayer's share of 20% of the amount determined under subsection (4.1). 25.1(5) A taxpayer that has claimed and is eligible for a mining exploration tax credit under this section for a taxation year is deemed to have paid, at the time referred to in section 156.1(4) or 157(1)(b) of the federal Act, as the applicable section relates to the taxation year for the taxpayer, the amount of the tax credit on account of the taxpayer's tax payable under this Act. 25.1(6) A taxpayer who wishes to claim a mining exploration tax credit under this section for a taxation year must file, with the taxpayer's return of income under section 29 for the taxation year, an application for the tax credit in the form, and containing the information and records, required by the Commissioner of Income Tax. 25.1(7) A taxpayer is not entitled to a mining exploration tax credit in respect of a taxation year unless, within 36 months after the end of the taxation year, the taxpayer files the information and records required under subsection (6) with respect to the tax credit. 25.1(8) The Lieutenant Governor in Council may make regulations prescribing outlays or expenses as excluded expenses for the purposes of this section. 25.1(9) Without limiting any provision of this or any other enactment, the Provincial minister, the federal minister, if a collection agreement is in effect, and the minister responsible for the administration of the Ministry of Energy and Mines Act may (a) collect any information that is relevant to an application for a tax credit being claimed or already claimed under this section, and (b) share with each other, in accordance with an information-sharing agreement under section 65, any information that is relevant to an application for a tax credit being claimed or already claimed under this section.... 47(1) Sections 220(2) to (7), 221.1, 224, 225.1 and 225.2 of the federal Act apply for the purposes of this Act. 47(2) Subject to section 69, the Provincial minister must administer and enforce this Act.... 69(1) The finance minister, with the approval of the Lieutenant Governor in Council, may, on behalf of the government of British Columbia, enter into a collection agreement with the government of Canada under which the government of Canada will collect taxes payable under this Act on behalf of British Columbia and will make payments to British Columbia for the taxes collected, under the terms and conditions of the collection agreement. 69(2) The finance minister, with the approval of the Lieutenant Governor in Council, may, on behalf of the government of British Columbia, enter into an agreement amending the terms and conditions of a collection agreement. 69(3) If a collection agreement is entered into, the federal minister, on behalf of or as agent for the Provincial minister, is authorized to use all the powers, to perform all the duties and to exercise any discretion that the Provincial minister or the deputy Provincial minister has under this Act, including the discretion to refuse to permit the production in judicial or other proceedings in British Columbia of any document that it is not, in the opinion of the federal minister, in the interests of public policy to produce. 69(4) If a collection agreement is entered into, the Commissioner of Customs and Revenue may (a)        use all the powers, perform the duties and exercise any discretion that the federal minister has under subsection (3) or otherwise under this Act, and (b)        designate officers of his or her agency to carry out functions, duties and powers similar to those that are exercised by them on his or her behalf under the federal Act. 69(5) Despite subsection (3), the federal minister is not authorized to use, perform or exercise any of the following powers, duties or discretions of the Provincial minister: (a)        determining that a form is acceptable under section 11(2)(b), (3)(b) or (4)(b); (b)        specifying forms under section 13(3); (c)        respecting the collection and sharing of information under sections 13.1(5), 21(15), 25.1(9), 77.1(2) and 95(2); (d)        respecting an appeal under section 18; (e)        respecting an information-sharing agreement under section 65;(f) any power, duty or discretion under sections 68(4) and 95(1). ...

The distinction between financial and other types of services is not always straightforward-- for example, data processing and administrative services offered in conjunction with a financial transaction could be considered to be part of the financial service or separate administrative services. ... Thus, where a financial institution provides a financial service such as a loan, but debt collection services in relation to the loan are provided by a third party, the debt collection service will not be considered to be a financial service and will be fully taxable. ... Financial services appear in Part VII of that schedule. [3] Section 178 of the Act was repealed on April 24, 1996, however, that provision is considered merely to have reiterated an already recognized common law rule. [4] A mandatary is clearly not obligated to reveal to the third person with whom he contracts that he is acting as a mandatary. ...

He considered the basic purpose of the project which was to construct the residential portion of the development consisting of 56 units. ... He admitted that he did not pay his capital contribution to the partnership name itself but paid it to what he considered to be their agent, and he felt it was legitimate. ... The Minister argues that the appellant would have seen that all the requirements of the general partners were complied with if he seriously considered himself to be a partner. ...

Had I been given any evidence that part of the US$6,000,000 was to compensate Mohawk for loss of profit, I would have concluded that that part of the settlement should be considered income from a business as it would have been paid as a loss of profit that Mohawk would have made. The facts only indicate that the money was paid as damages to prevent a lawsuit that could have been considered an embarrassment to Phillips and nothing more. ... Goodhews, [1978] 2 All E.R. 40 (C.A.), Buckley, L.]., after reviewing a number of earlier decisions including Simpson, supra, enunciated the following principles, at page 46: In my opinion a perusal of these authorities leads to the conclusion that every case of a voluntary payment, and we are only concerned with cases of that kind in the present appeal, must be considered on its own facts to ascertain the nature of the receipt in the recipient's hands. ...

They considered such matters as the redemption of the shares; a possible merger of the appellant and Fantasy and the question whether the appellant would be in a position to deduct for tax purposes the interest payments if it borrowed the moneys from the CIBC. ... Furthermore I am not convinced that the language used by Vegt in this memo supports his assertion that all options and relevant factors had been considered by the appellant and that a firm decision to redeem had been taken on June 5, 1985. ... In his discussion of the question he considered the alternative possibility that the appellant be wound up or amalgamated with Fantasy Gardens. ...

" He considered Whitbread v. Walley, supra, and found that subsection 8(1), in restricting the time within which a claim may be brought, did not violate section 7 of the Charter. ... [as he then was] in a minority concurring opinion in Reference re section 193 and subsection 195.1(1) of the Criminal Code, [1990] 1 S.C.R. 1123 considered examples of when section 7 of the Charter would come into play. Although not limiting the application of section 7 to the examples considered, he observed [at pages 1175-76] that: What is at stake in these examples is the kind of liberty and security of the person the state typically empowers judges and courts to restrict. ...

Having considered the nature of the question to be decided by the Director, I find the following factors, discussed by Madam Justice Sharlow in Lanno v. ... Rather, what must be considered is the view of an objective observer with knowledge of all of the pertinent facts. [19]       St-Onge was subsequently followed by Judge Tardif of the Tax Court of Canada in Roy v. ... The Director's decision was lengthy and considered. The initial decision had been based, in part, upon the refusal to allow an extension of time for the filing of the election. ...

  [31]     The question of when a deemed director ceases to act as such was considered by Rip C.J. in Bremner v. ... As the term implies, a de facto director is considered to be a director if he acts as such by doing acts normally reserved for directors; for example, participating in board meetings, signing board resolutions, making or participating in administrative decisions or decisions to sell, giving instructions in the name of the corporation, representing to third parties that he is a director, etc.                                                                                                    ...   [46]     With respect to the objective factors to be considered, few details concerning the size, nature and complexity of JDR’s business were provided at the hearing. ...

Each paragraph dealing with the two separate mortgages includes a clause to the effect that the mortgagor (Mendle- witz) shall have the privilege of demolishing any buildings standing on the subject property and to commence construction, “such demolition and/or construction being deemed an act of waste so as to cause the said mortgage to be considered in default”. ... As to possession, the respondent rightly contended that possession of land must be considered in every case with reference to its peculiar circumstances: Kirby v Cowderoy, [1972] AC 599; Re Shantz and Hallman (1927), 60 OLR 542 (Ont CA). ... In these circumstances, can the balance of the purchase moneys after the $70,000 actually received in 1968 be considered an “amount receivable” by the respondent in 1968 under subparagraph 85B(1)(b) of the Income Tax Act? ...

Relevant statutory provisions For ease of reference, I will set out the relevant provisions of the Income Tax Act: 55(2) Where a corporation resident in Canada has after April 21, 1980 received a taxable dividend in respect of which it is entitled to a deduction under subsection 112(1) or 138(6) as part of a transaction or event or a series of transactions or events (other than as part of a series of transactions or events that commenced before April 22,1980), one of the purposes of which (or, in the case of a dividend under subsection 84(3), one of the results of which) was to effect a significant reduction in the portion of the capital gain that, but for the dividend, would have been realized on a disposition at fair market value of any share of capital stock immediately before the dividend and that could reasonably be considered to be attributable to anything other than income earned or realized by any corporation after 1971 and before the transaction or event or the commencement of the series of transactions or events referred to in paragraph 3(a), notwithstanding any other section of this Act, the amount of the dividend (other than the portion thereof, if any, subject to tax under Part IV that is not refunded as a consequence of the payment of a dividend to a corporation where the payment is part of the series of transactions or events) (a) shall be deemed not to be a dividend received by the corporation; (b) where a corporation has disposed of the share, shall be deemed to be proceeds of disposition of the share except to the extent that it is otherwise included in computing such proceeds; and (c) where a corporation has not disposed of the share, shall be deemed to be a gain of the corporation for the year in which the dividend was received from the disposition of a capital property. ... He considered the taxpayer’s submissions that the rollover was not intended to avoid taxation; he also considered the fact that 30 days after the rollover took effect, the taxpayer was able to sell 49 per cent of the shares to Larry Sych for $1. ... However, if the situation is considered in its totality, a very different purpose emerges. ...