Section 39

Subsection 39(1) - Meaning of capital gain and capital loss

Paragraph 39(1)(a)

See Also

Staltari v. The Queen, 2015 DTC 1130 [at 818], 2015 TCC 123

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Tax Topics - General Concepts - Evidence uncorroborated testimony 80
Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Business no business where no business organization 155
Tax Topics - Income Tax Act - Section 38 - Paragraph 38(a.2) land donated in order to achieve tax benefit was still a gift to a qualified donee 119
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Real Estate secondary intention to develop land irrelevant if land donated instead 484

Rogers Estate v. The Queen, 2015 DTC 1029 [at 124], 2014 TCC 348

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Tax Topics - Income Tax Act - Section 15 - Subsection 15(1) cash surrender of employee stock options for their value was not shareholder benefit 116
Tax Topics - Income Tax Act - Section 5 - Subsection 5(1) exercise of stock option surrender plan for FMV was not "remuneration" 111
Tax Topics - Income Tax Act - Section 7 - Subsection 7(3) - Paragraph 7(3)(a) s. 7 a complete code for taxation of stock option benefits 214
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Options holding one's employee stock options until just before they expire is not typical of an adventure in the nature of trade 171

Administrative Policy

4 November 2008 External T.I. 2008-0264181E5 - Income recognition and ACB - trust units

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Tax Topics - Income Tax Act - Section 53 - Subsection 53(2) - Paragraph 53(2)(h) - Subparagraph 53(2)(h)(i.1) amount paid to beneficiary "was included" in its taxation year in which trust's taxation year ends/beneficiary return for previous year re-opened to avoid double taxation 264

84 C.R. - Q.51

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Subparagraph 39(1)(a)(i.1)

Cases

Canada v. Zelinski, 2000 DTC 6001 (FCA)

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Subparagraph 39(1)(a)(iii)

Administrative Policy

9 October 2015 APFF Financial Strategies and Financial Instruments Roundtable Q. 1, 2015-0588941C6 F - Critical illness insurance

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Subparagraph 39(1)(a)(ii)

Administrative Policy

8 July 2013 Internal T.I. 2012-0470021I7 - Settlement of Future Benefits – ASO Plan

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Paragraph 39(1)(b)

Administrative Policy

8 October 2010 CTF Annual Conference Roundtable, 2013-0507191C6 - Monetization of Securities - 2010 CTF Conference

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Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Futures/Forwards/Hedges equity forward gain on income account 110

7 October 2016 APFF Roundtable Q. 3, 2016-0652851C6 F - Annulation d'une promesse d'achat sur une maison

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Tax Topics - Income Tax Act - Section 40 - Subsection 40(2) - Paragraph 40(2)(b) damages for breach of covenant to purchase principal residence not covered 65

IT-159R3 "Capital Debts Established to be Bad Debts"

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Tax Topics - Income Tax Act - Section 50 - Subsection 50(1) 0

Paragraph 39(1)(c)

Cases

Ollenberger v. Canada, 2013 DTC 5064 [at 5863], 2013 FCA 74

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Rich v. Canada, 2003 DTC 5115, 2003 FCA 38

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Reeson Investments Ltd. v. The Queen, 90 DTC 6420 (FCTD)

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Tax Topics - Statutory Interpretation - Drafting Style 55

See Also

Barnwell v. The Queen, 2015 DTC 1115 [at 724], 2015 TCC 98 (Informal Procedure), aff'd 2016 FCA 150

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Tax Topics - General Concepts - Corporate/Separate Personality - separate existence separate personality of Ontario corporation 84

Nanica Holdings Limited v. The Queen, 2015 DTC 1111 [at 657], 2015 TCC 85 (Informal Procedure)

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Tax Topics - Income Tax Act - Section 129 - Subsection 129(1) “Dividend refund” an amount actually paid, not a notional amount.

Gaumond v. The Queen, 2014 DTC 1024 [at 98], 2014 TCC 339 (Informal Procedure)

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Tax Topics - Income Tax Act - Section 50 - Subsection 50(1) s. 50 not available where debt settled in year 100
Tax Topics - Income Tax Act - Section 84 - Subsection 84(9) s. 84(9) not for greater certainty 123

St-Hilaire v. The Queen, 2014 TCC 336 (Informal Procedure)

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Tax Topics - Income Tax Act - Section 50 - Subsection 50(1) acceptance of bankruptcy proposal caused debt to disappear before taxpayer's year end 216

Langille v. The Queen, 2009 DTC 1103 [at 564], 2009 TCC 139

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Tax Topics - Income Tax Act - Section 125 - Subsection 125(7) - Specified Investment Business unwitting pyramid scheme 137

Borys v. The Queen, 2005 DTC 1069, 2005 TCC 397

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MacKay v. The Queen, 2003 DTC 748 (TCC)

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Klein v. The Queen, 2001 DTC 443 (TCC)

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Sandner v. MNR, 93 DTC 901 (TCC)

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Kyrés v. MNR, 92 DTC 1958 (TCC)

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McHale v. MNR, 92 DTC 1781 (TCC)

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Administrative Policy

16 June 2016 Internal T.I. 2015-0597971I7 F - Perte réputée nulle - loss deemed nil

Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 40 - Subsection 40(2) - Paragraph 40(2)(g) - Subparagraph 40(2)(g)(ii) capital loss potentially could be recognized on a non-interest bearing loan made to a corporation in which the taxpayer had no equity/subordinate purpose sufficient 245

2 October 2014 External T.I. 2013-0513281E5 F - Interaction entre 42(1) et 39(1)c)

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Tax Topics - Income Tax Act - Section 42 no deeming of s. 42(1)(b)(ii) loss to arise from the SBC shares, so that not a BIL 259

15 September 1995 External T.I. 5-951451 -

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23 August 1994 External T.I. 5-941375 -

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29 July 1992 Memorandum (Tax Window, No. 21, p. 4, ¶2040)

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14 April 1993 T.I. (Tax Window, No. 30, p. 6, ¶2491)

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91 C.R. - Q.35

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19 February 1990 T.I. (July 1990 Access Letter, ¶1319)

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86 C.R. - Q.24

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81 C.R. - Q.20

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80 C.R. - Q.18

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IT-484R "Business Investment Losses"

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Tax Topics - Income Tax Act - Section 84 - Subsection 84(9) 0

Subsection 39(1.1)

Administrative Policy

6 October 2017 APFF Financial Strategies and Instruments Roundtable, Q.8

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Tax Topics - Income Tax Act - Section 70 - Subsection 70(5) FX deposit treated as debt rather than s. 39(1.1) currency 50

Subsection 39(2) - Foreign exchange capital gains and losses

Cases

Canada v. Agnico-Eagle Mines Limited, 2016 FCA 130

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Tax Topics - Income Tax Act - Section 261 - Subsection 261(2) on conversion of USD convertible debenture, the repayment amount arose at the conversion time 158

Canada v. Macmillan Bloedel Ltd., 99 DTC 5454 (FCA)

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Tahsis Co. Ltd. v. The Queen, 79 DTC 5328, [1979] CTC 410 (FCTD)

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See Also

Agnico-Eagle Mines Limited v. The Queen, 2015 DTC 1008 [at 43], 2014 TCC 324, aff'd 2016 FCA 130

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Tax Topics - Income Tax Act - Section 261 - Subsection 261(2) U.S. dollar principal of a convertible debenture should be considered on conversion to have been settled at the historical exchange rate when the conversion price was set
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Tax Topics - General Concepts - Evidence expert opinion on domestic law excluded 31

Imperial Oil Limited v. The Queen, 2004 DTC 2377, 2004 TCC 207, aff'd on different grounds 2004 DTC 6044, 2004 FCA 36

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Federal Commissioner of Taxation v. Energy Resources of Australia Ltd., 94 ATC 4923, [1994] FCA 924 (Full Fed. Ct.)

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Reed v. Young, [1984] BTC 424 (C.A.), aff'd [1986] BTC 242 (HL)

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Words and Phrases
sustains

The Minister of National Revenue v. Consolidated Glass Limited, 57 DTC 1041, [1957] CTC 78, [1957] S.C.R. 167

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Administrative Policy

29 November 2016 CTF Roundtable Q. 3, 2016-0670201C6 - Agnico-Eagle Mines Decision

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Tax Topics - Income Tax Act - Section 143.3 - Subsection 143.3(3) - Paragraph 143.3(3)(b) application to coversion of debenture 109

22 January 2015 Internal T.I. 2014-0560571I7 - Paid-up capital reduction of a foreign affiliate

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2014 Ruling 2013-0479701R3 - Transfer of US dollar loan

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Tax Topics - Income Tax Act - Section 40 - Subsection 40(2) - Paragraph 40(2)(e.1) s. 40(2)(e.1) trumped s. 40(2)(g)(ii) so that US Loan ACB preserved 167
Tax Topics - Income Tax Act - Section 40 - Subsection 40(2) - Paragraph 40(2)(g) - Subparagraph 40(2)(g)(ii) s. 40(2)(e.1) trumped s. 40(2)(g)(ii) so that US Loan ACB preserved 112
Tax Topics - Income Tax Act - Section 80.01 - Subsection 80.01(3) S. 40(2)(e.1) trumped s. 40(2)(g)(ii) so that US Loan ACB preserved 167

2014 Ruling 2013-0514191R3 - Debt restructuring, forgiveness and winding-up

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Tax Topics - Income Tax Act - Section 248 - Subsection 248(1) - Principal Amount non-application of s. 39(2) to exchange of U.S.-dollar notes 123
Tax Topics - Income Tax Act - Section 51.1 s. 51.1 exchange of U.S.-dollar notes 123
Tax Topics - Income Tax Act - Section 53 - Subsection 53(1) - Paragraph 53(1)(f.1) 0
Tax Topics - Income Tax Act - Section 80.01 - Subsection 80.01(4) s. 51.1 exchange of U.S.-dollar notes and ATR-66 debt slide 372

14 March 2014 Internal T.I. 2013-0507661I7 - Foreign Exchange - Loan Renewal

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5 November 2013 External T.I. 2013-0501241E5 F - Application of subsection 39(2)

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2011 Ruling 2011-0395771R3 - 39(2) - Conversion of P/S to C/S

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16 November 2009 External T.I. 2009-0317591E5 - FX gains/losses when partners assume ptnshp debt

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5 October 2007 APFF Roundtable, 2007-0242441C6 F - Gains ou pertes sur taux de change

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23 July 2007 Internal T.I. 2007-0234691I7 F - Foreign Exchange Gains/Losses and CDA

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23 July 2007 Internal T.I. 2007-0228601I7 F - Redemption of U.S. Denominated Shares

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15 January 2007 Internal T.I. 2006-0216801I7 - Redemption of US $ Denominated Shares

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8 September 2005 External T.I. 2004-008508 -

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19 November 1999 TEI Roundtable, 1999-0010360 -

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23 January 1998 T.I. 972149 [change of currency without novation]

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Income Tax Technical News No. 14, 9 December 1998

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28 February 1996 TI 960179

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4 June 1993 External T.I. 5-931384 -

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17 January 1991 T.I. (Tax Window, Prelim. No. 3, p. 2, ¶1094)

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3 October 1990 T.I. (Tax Window, Prelim. No. 1, p. 3, ¶1025)

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90 C.R. - Q51

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79 C.R. - Q.35

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IT-270R2 "Foreign Tax Credit" under "Amount Paid by the Taxpayer for the Year"

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Calculating and reporting your capital gains and losses

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Tax Topics - Income Tax Act - Section 40 - Subsection 40(1) 33

IT95R "Foreign Exchange Gains and Losses" 1 January 1995.

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Articles

Didier Fréchette, Ryan Rabinovitch, "Current Issues Involving Foreign Exchange", 2015 CTF Annual Conference paper

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Carrie Smit, "Debt Restructuring and the Falling Canadian Dollar"

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Amélie Guimont, "Denial of Capital Losses from Foreign Currency Fluctuations", Canadian Tax Focus, Vol. 3, No. 2, May 2013, p.4.

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Eric Bretson, Heather Kerr, "Tax Planning for Foreign Currency", 2009 Conference Report: discussion of relationship between ss. 39(1) and (2).

K. A. Siobhan Monaghan, Raj Juneja, "Selected Issues in Cross-Border Debt Financing", 2006 Conference Report, c. 16: includes discussion of foreign exchange issue on tower structures.

H. Berwick, E. Richardson, "Conversion to the Euro-Taxable Event?", Corporate Finance, Vol. VI, No. 2, p. 500.

Subsection 39(2.02)

Articles

Carrie Aiken, Johnson Tai, "Debt Restructuring Transactions – Issues, Strategies and Trends", 2016 CTF Annual Conference draft paper

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Subsection 39(2.1) - Upstream loans — transitional set-off

Administrative Policy

28 May 2015 IFA Roundtable Q. 8, 2015-0581561C6 - IFA 2015 Q.8: 39(2.1) and FCTR

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Articles

Geoffrey S. Turner, "Transitional Tax Treatment of Grandfathered Upstream Loans – Repayment Deadline Approaching", International Tax (Wolters Kluwer CCH), No. 88, June 2016, p. 7

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Subsection 39(3) - Gain in respect of purchase of bonds, etc., by issuer

Administrative Policy

2014 November 18 TEI Roundtable, Q. E.3

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20 April 2009 Internal T.I. 2008-0302511I7 - LYONS - Open Market Purchase

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Tax Topics - Income Tax Act - Section 80 - Subsection 80(1) - Forgiven Amount s. 80 does not apply to open market purchases 193

Articles

Carrie Smit, "Repurchasing Underwater US Dollar Notes", International Tax (Wolters Kluwer), August 2015, No. 83.

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Hugh Berwick, Derek Chiasson, "Repayment or Repurchase of Debt", Corporate Finance, Vol. VI, No. 1, 1998, p. 457: Discussion of whether s. 18(9.1) or 20(1)(f) applies to open market purchases of foreign currency bonds.

Subsection 39(4) - Election concerning disposition of Canadian securities

Cases

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

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Satinder v. Canada (Attorney General), 2003 DTC 5022, 2002 FCA 491

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Satinder v. The Queen, 95 DTC 5340 (FCA)

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Tax Topics - Income Tax Act - Section 12 - Subsection 12(1) - Paragraph 12(1)(c) T-Bill discounts were interest 131

The Queen v. Loewen, 93 DTC 5109 (FCTD)

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See Also

Sandnes v. The Queen, 2004 DTC 2466, 2004 TCC 244

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Robertson v. The Queen, 97 DTC 449 (TCC)

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Taylor v. MNR, 90 DTC 1917 (TCC)

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Financial Collection Agencies (Quebec) Ltd. v. MNR, 90 DTC 1040 (TCC)

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Administrative Policy

18 September 2013 Internal T.I. 2013-0487871I7 - Filing Due Date for Elections

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Tax Topics - Income Tax Act - Section 220 - Subsection 220(3.1) election filed with late return 217

24 May 2001 External T.I. 2001-006904 -

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9 September 1999 TI 991439

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Subsection 39(4.1) - Members of partnerships

Administrative Policy

20 June 2016 External T.I. 2014-0559961E5 F - Subsection 39(4) - securities owned by partnership

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12 February 2003 External T.I. 2002-014142 -

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Subsection 39(5) - Exception

Administrative Policy

31 January 1995 T.I. 942569 (C.T.O. "Venture Capital Corporation")

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Paragraph 39(5)(a)

Cases

Kane v. The Queen, 94 DTC 6671 (FCTD)

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The Queen v. Vancouver Art Metal Works Ltd., 93 DTC 5116 (FCA)

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See Also

Zsebok v. The Queen, 2012 DTC 1127 [at 3145], 2012 TCC 99

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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 leveraged frequent stock trading 123

Administrative Policy

24 March 2015 External T.I. 2012-0470991E5 F - Mutual fund trust

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Tax Topics - Income Tax Act - 101-110 - Section 104 - Subsection 104(21) flow-through to unitholder of capital gain designated by MFT 175
Tax Topics - Income Tax Act - Section 132 - Subsection 132(6) day trading included in investment undertaking 56
Tax Topics - Income Tax Act - Section 18 - Subsection 18(1) - Paragraph 18(1)(a) - Income-Producing Purpose s. 39(4) presumption establishing expense non-deductibility 60
Tax Topics - Income Tax Act - Section 9 - Capital Gain vs. Profit - Shares capital v. income character determined at trust level 88

6 October 2010 External T.I. 2010-0381231E5 - Extensive Trading in Securities

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15 September 1994 External T.I. 5-941818 -

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93 C.R. - Q. 52

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25 April 1990 Memorandum (September 1990 Access Letter, ¶1413)

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86 C.R. - Q.16

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Subsection 39(9)

Administrative Policy

S4-F8-C1 - Business Investment Losses

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Subsection 39(12) - Guarantees

Cases

Abrametz v. Canada, 2009 DTC 5828, 2009 FCA 111

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 40 - Subsection 40(1) 187

See Also

Gordon v. The Queen, 96 DTC 1554 (TCC)

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Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 40 - Subsection 40(2) - Paragraph 40(2)(g) - Subparagraph 40(2)(g)(ii) income-producing purpose at time guarantee given 177