Search - considered

  [7]                The Minister, however, considered that the two payments were remuneration received “in consideration or partial consideration” for a non-solicitation covenant within the meaning of paragraph 6(3)(e) of the ITA: (3) An amount received by one person from another (a) during a period while the payee was an officer of, or in the employment of, the payer, or (b) on account, in lieu of payment or in satisfaction of an obligation arising out of an agreement made by the payer with the payee immediately prior to, during or immediately after a period that the payee was an officer of, or in the employment of, the payer, shall be deemed, for the purposes of section 5, to be remuneration for the payee's services rendered as an officer or during the period of employment, unless it is established that, irrespective of when the agreement, if any, under which the amount was received was made or the form or legal effect thereof, it cannot reasonably be regarded as having been received (c) as consideration or partial consideration for accepting the office or entering into the contract of employment, (d) as remuneration or partial remuneration for services as an officer or under the contract of employment, or (e) in consideration or partial consideration for a covenant with reference to what the officer or employee is, or is not, to do before or after the termination of the employment ... Accordingly, to succeed, the appellant needed to show that the amounts in question could not reasonably be considered as having been received in consideration or partial consideration for that covenant ... That is far from clear, especially from the perspective of the employer, which obtained everything it was seeking through the non-solicitation clause without having to purchase assets from the appellant. [18]            There is no doubt that by entering into the covenant as he did, the appellant was relinquishing the clientele he considered as being “his”; but even assuming that the clients were in fact “his” (the evidence does not reveal where their loyalties actually lay), the legislation provides that such a covenant, when exchanged for cash in the context of an employment termination, gives rise to employment income ...

., [1989] 1 C.T.C. 2196, 89 D.T.C. 153, at page 2198 (D.T.C. 155) are very relevant as they accurately portray the present fact situation:...I can only conclude that the appellant’s activities do not meet the threshold required for him to be considered as "carrying on a business". ... In particular, the Court stated the following: In my view, whether a taxpayer has a reasonable expectation of profit is an objective determination to be made from all of the facts, The following criteria should be considered: the profit and loss experience in past years, the taxpayers’s training, the taxpayer’s intended course of action, the capability of the venture as capitalized to show a profit after charging capital cost allowance. ... Although the plaintiff spent considerable sums of money in his attempt to set up a commercial observatory, he did not meet the threshold required for the island to be considered a business. ...

On the basis of the information submitted, the Department of National Revenue confirmed that he would be considered an emigrant commencing April 1, 1991. ... Notwithstanding subsection 2(2), where an individual was resident in Canada during part of a taxation year, and during some other part of the year was not resident in Canada, was not employed in Canada and was not carrying on business in Canada, for the purpose of this Part, his taxable income for the taxation year is the aggregate of (a) his income for the period or periods in the year throughout which he was resident in Canada, was employed in Canada or was carrying on business in Canada, computed as though such period or periods were the whole taxation year and as though any disposition of property deemed by subsection 48(1) to have been made by reason of the taxpayer having ceased to be resident in Canada were made in such period or periods, and (b) the amount that would be his taxable income earned in Canada for the year if at no time in the year he had been resident in Canada, computed as though the portion of the year that is not in the period or periods referred to in paragraph (a) were the whole taxation year, minus the aggregate of such of the deductions permitted for the purpose of computing taxable income as may reasonably be considered wholly applicable to the period or periods referred to in paragraph (a) and of such part of any other of those deductions as may reasonably be considered applicable to such period or periods. ...

The provisions which are particularly applicable to the issue here are contained in sub-rules (1), (2) and (3), which are set out hereunder: Rule 324. (1) A motion on behalf of any party may, if the party, by letter addressed to the Registry, so requests, and if the Court or a prothonotary, as the case may be, considers it expedient, be disposed of without personal appearance of that party or an attorney or solicitor on his behalf and upon consideration of such representations as are submitted in writing on his behalf or of a consent executed by each other party. (2) A copy of the request to have the motion considered without personal appearance and a copy of the written representations shall be served on each opposing party with the copy of the notice of motion that is served on him. (3) A party who opposes a motion under paragraph (1) may send representations in writing to the Registry and to each other party or he may file an application in writing for an oral hearing and send a copy thereof to the other side. ... Mr Justice Collier reiterated the mandatory service requirements at page 479: Applying the mandatory provisions of paragraph (2) to this motion, the plaintiff must serve copies of (a) the motion, (b) affidavits in support (if any are filed), (c) the request to have it considered without personal appearance, (d) any written representations on the present defendant, the Attorney General of Canada. ... In addition, the practice of the Court is to require an oral hearing in any case where it is not satisfied that the matter can be adequately considered on the written submissions (Rule 324(4)). ...

The appellant's alternative arguments are that the amount should be considered as a bad debt pursuant to subsection 215(6) of the Act, and be deductible under paragraph 18(1)(a) or paragraph 20(1)(e) of the Act. ... Paying one’s debt is a good way to maintain a good business relationship, but this payment cannot be considered as a payment made for that purpose. A payment will be considered to have been made for that purpose when there is no legal obligation to make the payment. ...

The clear implication of his testimony was that while he had been disappointed that the proposed sale to WCI Canada Limited had not gone through he had not considered taking any action as a result of the disposition that was ultimately made of the household appliance business of Westinghouse Canada. ... Cameron, J considered the cases such as J Gliksten and Son, Limited v Green, [1929] AC 381, and London Investment and Mortgage Co Ltd v IRC, [1958] 2 All ER 230, which had established that insurance or other compensation for the loss of stock in trade was income, but held that the case before him was distinguishable on the ground that the taxpayer had contributed nothing to the relief fund and had no legal right to claim payment from it, as in the case of insurance or compensation for expropriation or war damage. ... Like it, they were made without legal obligation, but to make it easier for the recipient to accept what could be considered to be an adverse turn of affairs — in other words, for reasons of goodwill. ...

.— Notwithstanding paragraph 20(1)(c), in computing the taxpayer's income for a taxation year from a business or property, no deduction shall be made in respect of any amount paid or payable by the taxpayer in the year and after 1971 as, on account or in lieu of payment of, or in satisfaction of, (a) interest on borrowed money used to acquire land, or on an amount payable by him for land, or (b) property taxes (not including income or profits taxes or taxes computed by reference to the transfer of property) paid or payable by him in respect of land to a province or a Canadian municipality, if, having regard to all the circumstances, including the cost to the taxpayer of the land in relation to his gross revenue, if any, therefrom for that or any previous year, the land cannot reasonably be considered to have been, in that year, (c) used in, or held in the course of, a business carried on in the year by the taxpayer, or (d) [Repealed.] ... In other words, generally accepted accounting principles are to be considered, but, at the end, the Court must determine the deductibility of a disbursement and therefore the profit under subsection 9(1). ... However, there is no ambiguity if subsection 18(2) is considered for what it is, namely a limitation provision and not a provision opening a further deductibility not contemplated under subsections 9(1) and 18(1). ...

This it is, and this only, which on the death of a partner passes to his representatives, or to a legatee or his share; which under the old law was considered as bona notabilia, and which on his bankruptcy passes to his trustee. ... This is, however, subject to the provisions of section 22 of the Partnership Act 1890, considered below. ... All that, when considered along with the provisions of the syndicate agreement, indicates to me the carrying on, in common, of a business of acquiring and managing properties, with a view to profit. ...

However, other factors to consider include whether the worker provides his or her own equipment, whether the worker hires his or her own helpers, the degree of financial risk taken by the worker, the degree of responsibility for investment and management held by the worker, and the worker's opportunity for profit in the performance of his or her tasks. [3]   [11]     Accordingly, Major J. considered the central question to be determined is "whether the person who has been engaged to perform the services is performing them as a person in business on his own account or is performing them in the capacity of an employee" ... To formulate a decision then, the overall evidence must be considered taking into account those of the tests which may be applicable and giving to all the evidence the weight which the circumstances may dictate. [4]   Similarly, Major J. stated in Sagaz:   It bears repeating that the above factors constitute a non-exhaustive list, and there is no set formula as to their application. ... However, if he had considered it it is apparent that, from the employees' standpoint, the latter were not in any way integrated into the employer's business ...

A debt is considered bad only when the whole amount is uncollectible or when a portion of it has been settled and the remainder is uncollectible. Otherwise, where a portion of a debt can be considered to be uncollectible, this portion is not considered to be bad. ...