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The latter is determined by facts ordinarily external to the will of an individual, the former depends upon his will. 4.03.2 This does not mean, however, that the intention cannot be considered. ... In the Kallos, (supra), case, intention was explicitly considered. In the Canadian Tax Reporter at 2045, one can read: However, although the individual’s motives and intentions are relevant factors in determining residence they are not essential or conclusive. ... Also as in the present case, Mr Justice Noël considered the facts that the taxpayer visited his family in Toronto three times: The three visits made by the appellant during the period under review were, as far as the Christmas visit is concerned, of such a singular occurrence and as far as the stopovers, of such a transitory and incidental nature, that I fail to see how this could be construed as implying residence in Canada. ...

However, Mr Fordham made the following comments which may be considered as an obiter dictum: However, what has been said in the last two paragraphs is not, without more, determinative of what is in issue. ... However looking at this, more deeply, it seems to me that pursuant to 15(2)(b) the account “Advances to Shareholders” must be considered as loans only at the end of the financial year of the company and it is only then that a series of loans and repayments must be considered. ... Therefore the loan must be considered as it is at the end of the lender’s year and not during the said year: hence, the series of loans and repayments, that the legislator wishes to present seems rather to be those which occurred after the end of the year of the company. ...

What is the line which separates the two classes of cases may be difficult to define, and each case must be considered according to its facts; the question to be determined being — Is the sum of gain that has been made a mere enhancement of value by realising a security, or is it a gain made in an operation of business in carrying out a scheme for profit-making? It is not so much what the taxpayer says his intention was in acquiring the property, it is what he did that must be considered, and all factors antecedent and subsequent to the transaction in question must also be carefully considered. Though there may have been a series of sales and a series of profits which might individually be considered capital gains, the whole course of conduct of the taxpayer must be considered and his avowed intention at the time of acquisition must be tested against all of the surrounding facts. ...

The grants are intended for professional artists; that is, those who have finished basic training or have the necessary competence to be considered as professionals within their discipline. ... (b) The appellant is considered as a very professional fine art artist of high quality. ... The quality of the appellant’s work, his degree of experience, and exposure are elements which were considered when the Burton Gallery made the decision to take him. ...

By reassessment, notice of which was posted on the 13th day of July, 1978, the Minister of National Revenue determined, inter alia, that the said amount of interest of $2,323,140 (Canadian) was not properly includable in computing the foreign investment income of the plaintiff for its 1976 taxation year on the basis that “interest earned on term bank deposits in Philippine banks totalling $2,323,140 is considered income from property used or held by the corporation in the year in the course of carrying on a business and therefore, not investment income eligible for a refund of Part I tax”. ... The Board made the following findings: that these were fundamentally investment transactions; that since the taxpayer was not in the investment business, these transactions could only be considered “integral” if the specific function under review formed a necessary part of the whole operation, ie, that it provided a significant impact on the total revenue produced, which it did not; that these investments were subsidiary or ancillary to the taxpayer’s main business and the return was therefore Canadian investment income as defined by subsection 129(4). ... As loans it seems to me that they must prima facie be loans on capital not revenue account; which perhaps is only another way of saying that they must prima facie be considered as part of the Company’s fixed and not its circulating capital. ...

As a general rule, a taxpayer who takes commodity futures positions in, or who has transactions in, a commodity connected with his business, is considered to be trading as part of his business operations and the comments in paragraph 3 above apply. ... As an example, a jeweller who buys 100 ounces of gold for his business (a normal amount for his business) and also makes additional purchases of 1600 ounces of gold, or of futures contracts representing 1600 ounces of gold, as a speculation for his own account, may be viewed as a speculator with respect to the additional purchases when all the facts of the situation are considered. ... In J Camille Hare/ v DMR of the Province of Québec, 77 DTC 5438, the Supreme Court sanctioned the application of an administrative policy, but as the Court emphasized, the case was one where the said administrative policy did not conflict with the Act and where the Act itself is ambiguous. 5.5 In applying the usual principles, the Board concluded that the profit in question resulted from “an adventure or concern in the nature of trade” and was therefore to be considered a business-related profit. ...

Minister of National Revenue, [1980] CTC 2471, 80 DTC 1418 D E Taylor:—These are appeals heard on common evidence on March 21, 1980 at the City of Edmonton, Alberta, and are against tax assessments for the year 1974 in which the Minister of National Revenue allowed an amount of $37,216 to each of the appellants as a capital loss, but denied their claim that it be considered as a business loss. ... The question of the relationship between paragraphs 18(1)(a) and 18(1)(b) has been considered by the Courts on many occasions, but I would make specific reference to the precedent-setting judgment in British Columbia Electric Railway Company Limited v MNR, [1958] CTC 21; 58 DTC 1022. ... Since, however, that question does not arise if they fall within the prohibition of s 12(1)(b), this question should be first considered. ...

He argues that the amendments are to be considered effective as of the dates of the First Order and Second Order. With respect to the amount of $3,979.86 in the 1992 year, which comprised arrears of mortgage payments, the Appellant submits that it should be considered as regular maintenance. ... Submissions of the Respondent Counsel for the Respondent submits that only the First Order and Second Order are to be considered. ...

He also rejected the submission that the Gallivan letter could not be a decision subject to judicial review because it did not affect Iris’s legal rights, which flowed solely from section 229 of the Excise Tax Act. [28] The motion judge next considered the Minister’s submission that the prothonotary erred in failing to take into account the previous decisions of the Federal Court and this Court in this proceeding, in which Iris had sought interim mandatory relief. ... “This reading,” he continued, “supports a conclusion that the Application challenges a decision, albeit not expressly referenced, which is comparable to the expressly referenced decision related to the previous withholding.” [30] The motion judge also considered the scope of the prothonotary’s order, but this element of the order was not raised before us and is no longer in issue. ... I have considered the submissions provided by the parties on rule 301 in response to the Court’s direction in coming to the disposition of the appeal that I propose. ...

If such income is to be considered as income from property, then of course the appellant is entitled to the deduction abatement for provincial taxes permitted by section 33 of the Income Tax Act reproduced supra which here would be $25,278 or 47% X $53,784 (ie, the basic tax, $49,937, obtained by applying $45,070 on the first $90,000 and 65% on the remaining $7,487.47). ... She can only do so if she establishes that such income must be considered as “income earned in a province” within the meaning of the Act and the above Regulations bearing in mind that income from property, even if such property is outside the province, is deemed to be income earned in the province. ... The question, therefore, is whether the benefits received by the appellant under the agreement simply represent a return on capital irrespective of whether such return is based on risk capital or use of capital and should be considered as being essentially and factually passive investment income or whether such benefits must be considered as business income as the source of such income flows from a business operation. ...