Section 171

Subsection 171(1) - Disposal of Appeal

Cases

Canada v. Dow Chemical Canada ULC, 2022 FCA 70, leave granted 23 February 2023

In reassessing the taxpayer under s. 247(2), the Minister did not allow a requested “downward” adjustment under s. 247(10) (to increase the...

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Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Act - Section 18.5 Ministerial decision to deny a s. 247(10) downward adjustment cannot be appealed under s. 247(11) and, therefore, is not rendered non-reviewable by s. 18.5 259
Tax Topics - Income Tax Act - Section 247 - New - Subsection 247(11) Ministerial decision to deny a s. 247(10) downward adjustment cannot be appealed under s. 247(11) 176
Tax Topics - Income Tax Act - Section 247 - New - Subsection 247(10) Tax Court cannot review a s. 247(10) downward adjustment because it only has the ITA s. 171 jurisdiction to deal with an assessment and not with a s. 247(10) opinion 354
Tax Topics - Income Tax Act - Section 169 - Subsection 169(1) an appeal of an assessment is of an amount, not of an opinion leading to the assessment 157

Canada v. Oxford Properties Group Inc., 2018 FCA 30

Before overturning the findings below that the transactions in question had not abused ss. 97(2) and 100(1), so that s. 245 applied, Noël CJ...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) using the s. 88(1)(d) bump on newly-formed rental property LPs to avoid indirect recapture income under s. 100(1) was abusive 975
Tax Topics - Income Tax Act - Section 88 - Subsection 88(1) - Paragraph 88(1)(d) s. 88(1)(d) bump is intended to permit the transfer of ACB that otherwise would be lost to another property that is taxed in the same way 371
Tax Topics - Income Tax Act - Section 98 - Subsection 98(3) - Paragraph 98(3)(c) s. 98(3)(c) bump is intended to avoid gain realization where there has been no economic gain 267
Tax Topics - Income Tax Act - Section 69 - Subsection 69(11) 3-year time limitation in s. 69(11) did not establish safe harbor for avoidance of recapture on sale after that period 382
Tax Topics - Income Tax Act - Section 100 - Subsection 100(1) purpose is to ensure that latent recapture will be recognized on sale to tax exempt 254
Tax Topics - Income Tax Act - Section 97 - Subsection 97(2) object includes ultimate taxation of the deferred gain 234
Tax Topics - Statutory Interpretation - Hansard, explanatory notes, etc. statement that amendment was for “clarification” was self-serving 209
Tax Topics - Statutory Interpretation - Interpretation Act - Subsection 45(2) determination of whether amendment merely clarified requires review of pre-amendment state of law 146
Tax Topics - Income Tax Act - Section 245 - Subsection 245(2) consequential s. 245(2) adjustment must be scaled to the abuse 391

Kruger Incorporated v. Canada, 2016 FCA 186

A reassessment added back $72M to the taxpayer’s income for 1998, being the difference between its claimed mark-to-market loss on its options of...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 9 - Timing non-statutory mark-to-market accounting was permissible under s. 9 468
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Inventory derivatives not held for resale are not inventory 175

Imperial Oil Resources Limited v. Canada (Attorney General), 2016 FCA 139

The second taxpayer (“IOVRL”), like the first, took the position that remission payments should be treated in the same manner for purposes of...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 164 - Subsection 164(7) remission payment did not generate interest entitlement 299

Jaft Corporation v. Canada (AG), 2014 DTC 5080 [at 7056], 2014 MBQB 59

CRA had found that the applicant's research into solutions for Sick Building Syndrome based on air treatment qualified for scientific research and...

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Rectification & Rescission attempt to rescind employment contracts, on the basis that employees had not satisfied scientific research & experimental development requirements, was retroactive tax-planning 210

SRI Homes Inc. v. Canada, 2012 DTC 5135 [at 7284], 2012 FCA 208, allowing appeal from 2011 TCC 386

The trial judge's reasons essentially paraphrased: an agreed statement of facts, the Minister's assertions, a copy of the Minister's framing of...

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Canada v. Nunn, 2007 DTC 5111, 2006 FCA 403

The trial Judge on her own initiative, without this issue being raised in the pleadings or argued, had found that an investment by the taxpayer...

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Sham misrepresentation element of sham 87
Tax Topics - General Concepts - Tax Avoidance misrepresentation element of sham 87

Rezek v. Canada, 2005 DTC 5373, 2005 FCA 227

Absent the finding of the Tax Court judge that a convertible hedge is a separate property, the appeals of the taxpayer would have been allowed....

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 150 - Subsection 150(1) - Paragraph 150(1)(d) s. 39(4) elections that were made with late-filed returns were valid as being made "in the taxpayer's return" 146
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Property spread comprising a convertible security and rights under short sale was not a single property 129
Tax Topics - Income Tax Act - Section 39 - Subsection 39(4) requirement to file election with return is satisfied even if return is late 144
Tax Topics - Income Tax Act - Section 96 spouse carrying on linked legs of integrated trading transactions 204
Tax Topics - Statutory Interpretation - Resolving Ambiguity 54

Pedwell v. The Queen, 2000 DTC 6405 (FCA)

The Tax Court Judge had erred in finding the taxpayer liable on a basis different from that in the Minister's notice of reassessment which was at...

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La Compagnie Price Limitée v. The Queen, 95 DTC 428 (TCC)

The Minister reassessed the taxpayer in accordance with a Federal Court judgment issued pursuant to a consent to judgment (as subsequently...

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Stare Decisis 141

The Queen v. Optical Recording Laboratories Inc., 90 DTC 6647, [1990] 2 CTC 524 (FCA)

A reassessment, which was in the same amount as a previous assessment except that it assessed accrued interest, was therefore a reassessment...

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Sharip v. The Queen, 87 DTC 5206, [1987] 1 CTC 302 (FCTD), aff'd 88 DTC 6484, [1988] 2 CTC 344 (FCA)

Until such time as a formal decision pursuant to s. 171(4) has been made, the judge has the power to reconsider his decision as to the disposition...

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McCambridge v. The Queen, 79 DTC 5412, [1979] CTC 473 (FCA)

"If Parliament had intended to provide that one means of disposing of an appeal could be by way of filing a notice of discontinuance, it would...

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Vineland Quarries and Crushed Stone Ltd. v. MNR, 70 DTC 6043, [1970] CTC 12 (Ex Ct)

The taxpayer filed a notice of appeal to an assessment by the Minister which reflected a disallowance of a portion of the taxpayer's capital cost...

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See Also

Canadian Imperial Bank of Commerce v. Canada, 2023 FCA 195

Webb JA found that the Tax Court could make a mixed finding of fact and law (as to the nature of a supply made having regard to the ETA definition...

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Locations of other summaries Wordcount
Tax Topics - General Concepts - Res Judicata res judicata (issue estoppel) did not apply where a retroactive amendment brought to the fore in the 2nd appeal of CIBC whether it was receiving a supply of property 426
Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Financial Service - Paragraph (r.5) predominant element supplied by a Loblaw banking sub to CIBC was a right to access Loblaw customers 264
Tax Topics - Excise Tax Act - Section 309 - Subsection 309(1) Tax Court could make a mixed finding of fact and law (as to the nature of a supply) that was on a basis different than argued by either party 173
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Property provision of access to customers was "property" 96

Canadian Imperial Bank of Commerce v. Canada, 2021 FCA 96

After finding that, under an agreement between the appellant (CIBC) and Aeroplan, the supply made by Aeroplan to CIBC was essentially labelled as...

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Locations of other summaries Wordcount
Tax Topics - Excise Tax Act - Section 123 - Subsection 123(1) - Supply agreement between bank and Aeroplan labelled the bank as receiving promotional services rather than purchasing Aeroplan Miles (being, mooted gift certificates) 477
Tax Topics - Excise Tax Act - Section 181.2 Aeroplan Miles were considered, by the sole Justice addressing the issue, to be gift certificates since no significant conditions to their redemption 348
Tax Topics - Excise Tax Act - Section 309 - Subsection 309(1) Tax Court not bound by an admission contrary to the evidence before it 173
Tax Topics - Other Legislation/Constitution - Federal - Federal Courts Act - Section 27 - Subsection 27(1.3) fresh argument could not be made by taxpayer at the Court of Appeal level 190

Leonard v. The Queen, 2021 TCC 33, rev'd 2022 FCA 195

After noting an admission by the Crown that the taxpayer had realized a loss on mortgage debt on foreclosure proceedings notwithstanding that, as...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(b) - Capital Loss v. Loss - Debt loss on mortgage that was acquired in order to acquire the underlying property under foreclosure proceeding on income account was also from an adventure 347
Tax Topics - Income Tax Act - Section 9 - Timing cost of mortgage debt acquired as adventure not deductible when expended 53
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition foreclosure proceedings resulted in disposition of the mortgage but not of the debt it had previously secured 471
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Disposition - Paragraph (b) - Subparagraph (b)(i) on a foreclosure, the taxpayer disposed of his mortgage, even though the debt it secured remained outstanding 429
Tax Topics - General Concepts - Evidence Manitoba law, being where the Tax Court hearing was held, was the lex fori governing the mortgage foreclosure proceeding at issue regarding a U.S. property 178

Dow Chemical Canada ULC v. The Queen, 2020 TCC 139, rev'd 2022 FCA 70

In reassessing the taxpayer under s. 247(2), the Minister did not allow a requested “downward” adjustment under s. 247(10) (to increase the...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 247 - New - Subsection 247(10) TCC has jurisdiction to review whether a CRA denial of a downward s. 247(10) adjustment was “correct in fact and law" 806
Tax Topics - Income Tax Act - Section 247 - New - Subsection 247(11) s. 247(11) only addresses penalty assessments 197

Rousseau v. Agence du revenu du Québec, 2020 QCCA 1308

The taxpayer, who had been employed in Alberta and been subject to source deductions based on the federal and Alberta rates, was found by the...

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Wiegers v. The Queen, 2019 TCC 260 (Informal Procedure)

The taxpayers, who had participated in a gifting tax shelter, claimed that they had not learned of a settlement offer made to other participants...

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Sterritt v. The Queen, 2018 TCC 117 (Informal Procedure)

The taxpayer stopped filing his tax returns beginning with the 2003 taxation year. Following a request by CRA, in February 2014 the taxpayer filed...

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Isah v. The Queen, 2018 TCC 28 (Informal Procedure)

The taxpayer, through the services of a now elusive “Mr. K,” had claimed charitable donations totalling approximately $18,000 for his 2009 to...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 161 - Subsection 161(1) TCC has jurisdiction to correct incorrectly computed assessment interest 105

R & S Industries Inc. v. The Queen, 2017 TCC 75

R & S Industries was unsuccessful in a motion to have the Federal Court direct CRA to reconsider its decision to not permit R & S Industries to...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 97 - Subsection 97(2) taxpayer is not bound by the statement of boot set out in its s. 97(2) election form 367

Deluca v Canada, 2016 ONSC 3865

The taxpayer used proceeds of a loan from “Barter World Canada Inc.” to acquire “TradeBux” from another Barter World entity (as well as to...

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Locations of other summaries Wordcount
Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Subsection 15(1) tax shelter participants are not an analogous class 95
Tax Topics - General Concepts - Negligence, Fiduciary Duty and Fault CRA has no duty to protect taxpayers from participating in tax shelters 362

Delle Donne v. The Queen, 2015 TCC 150

Respecting an argument that the taxpayer was required by s. 20(1)(l) or (p) to have "included" the interest in income before being entitled to the...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 12 - Subsection 12(11) - Investment Contract "debt" exists irrespective of demand 99
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(l) doubtful debt reserve claimed implicitly as at the year end in light of subsequently revealed information 542
Tax Topics - Income Tax Act - Section 20 - Subsection 20(1) - Paragraph 20(1)(p) - Subparagraph 20(1)(p)(i) bad debt deduction taken as at Dec. 31 in light of information available at April 30, and could be claimed implicitly or on appeal 478

Descarries v. The Queen, 2014 DTC 1143 [at 3412], 2014 TCC 75 (Informal Procedure)

Hogan J found that the transactions at issue abused the object of s. 84.1, a general anti-avoidance rule analysis which the Crown had not...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 245 - Subsection 245(4) use of outside basis to step up PUC abused s. 84.1 544
Tax Topics - Income Tax Act - Section 84 - Subsection 84(2) holdco distribution made out of loan from still-operating sub - s. 84(2) did not apply 521

Fio Corporation v. The Queen, 2014 TCC 58

The taxpayer was reassessed for its 2007 and 2008 taxation years, appealed to the Tax Court and then was further reassessed based on documents...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) implied undertaking of confidentiality during discovery 196
Tax Topics - Income Tax Act - Section 241 s. 241 does not override implied undertaking rule 153
Tax Topics - Other Legislation/Constitution - Federal - Tax Court of Canada Act - Section 17.2 time of commencement of appeal 150

Anonby v. The Queen, 2013 DTC 1154 [at 859], 2013 TCC 184 (Informal Procedure)

The taxpayer reported $42,000 of employment income on his return, and received a refund of approximately $4,000 based on $13,000 of source...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 165 - Subsection 165(1) no declaration as to source deductions, or vacating of reassessment that would increase substantive liability 241

Blackburn Radio Inc. v. The Queen, 2012 DTC 1213 [at 3580], 2012 TCC 255

In 2009 the Tax Court found that a 2004 reassessment in respect of the taxpayer's 1999 taxation year had been made outside of the limitations...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4) 133
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4.3) no further reassessment permitted if order to vacate or vary 298

SoftSim Technologies Inc. v. The Queen, 2012 DTC 1187 [at 3473], 2012 TCC 181

D'Auray J. found that the Court had jurisdiction to enforce a settlement agreement between the taxpayers and the Minister. S. 169(3) provides...

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Du-Perré c. La Reine, 2006 DTC 2965, 2004 TCC 773

In finding that in the Minister's Reply to the Notice of Appeal of the taxpayer, the Minister was entitled to allege that a number of transfers of...

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Paradis v. The Queen, 2004 TCC 676 (Informal Procedure)

The Minister assessed the taxpayer’s return as filed, and applied the resulting refund amount by way of set-off against a student loan amount...

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Sudbrack v. The Queen, 2000 DTC 2521 (TCC)

Bowman A.C.J. found that The Queen v.Continental Bank of Canada, 98 DTC 6501, [1998] 2 S.C.R. 358 merely applied the long-standing rule governing...

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Wendy Ann Eves Curoe v. Minister of National Revenue, 91 DTC 782, [1991] 1 CTC 2513 (TCC)

The taxpayer, which did not receive notification of the Tax Court hearing, was successful in having that judgment set aside on the basis of the...

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Laskaris v. MNR, 90 DTC 1364, [1990] 1 CTC 2464 (TCC)

The taxpayer's accountant and a Revenue Canada appeals officer send an application to the Tax Court to withdraw the taxpayer's appeal with the...

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McMillen Holdings Ltd. v. MNR, 87 DTC 585, [1987] 2 CTC 2327 (TCC)

The taxpayer, which had received a dividend refund for its taxation year ended July 31, 1982, on August 22, 1983, appealed to the Tax Court...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 164 - Subsection 164(7) dividend refund not an overpayment of tax 210

Dominion Stores Ltd. v. Dep. MNR, 82 DTC 6214, [1982] CTC 235, 82 DTC 6217 (FCA)

It was stated that a concession by the respondent that the processing of ground beef constituted "the manufacture or production of goods" for...

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Administrative Policy

3 June 2014 Internal T.I. 2013-0489471I7 - Subsection 171(1)

Was the Minister permitted to issue a reassessment in order to give effect to a Court's order to vacate or vary an assessment under s. 171(1)? CRA...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 152 - Subsection 152(4.3) no power to reassess following order to vacate or vary 107
Tax Topics - Income Tax Act - Section 169 - Subsection 169(1) appeal from varied assessment 106

Articles

Zahra Nurmohamed, "Settling Tax Disputes - An Unsettling Proposition", Tax Litigation, Vol. X, No. 3, 2002, p. 638

Discussion of the Galway Doctrine.

McGregor, "Resolving Tax Disputes: A Justice Perspective", 1994 Conference Report, c. 30

Includes a discussion of the perceived judicial constraints upon the nature of a settlement that may be reached.

Paragraph 171(1)(b)

Cases

Canada v. CBS Canada Holdings Co., 2020 FCA 4

Justice and the taxpayer (CBS) executed Minutes of Settlement including a Schedule specifying the portion of a $23.4 million non-capital loss to...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 169 - Subsection 169(3) Galway did not permit the Crown to resile from a settlement agreement negotiated in good faith 283

Subparagraph 171(1)(b)(iii)

Cases

Almadhoun v. Canada, 2018 FCA 112

The taxpayer received the Canada child tax benefit (the CCTB) for 2010, 2011, 2012 and 2013, but then was informed by CRA on April 15, 2014 that...

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 122.6 - Eligible Individual - Paragraph (e) unsuccessful refugee claimant who was subsequently permitted to stay on compassionate grounds did not qualify 330
Tax Topics - Other Legislation/Constitution - Charter (Constitution Act, 1982) - Subsection 15(1) immigrant status not a protected s. 15 characteristic 261
Tax Topics - Statutory Interpretation - Ordinary Meaning supposed purpose cannot supplant clear language 79

Subsection 171(2)

Cases

Patel v. Canada, 2020 FCA 27

In reversing a decision of the Tax Court judge that s. 171(2) could not be applied to the appeal of the two taxpayers, Nadon J.A. stated (at...

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