Words and Phrases - "revert"

65
28
44
35
26
22
12
9
52
1
2
18
37
20
29
60
1
49
58
34
7
7
11
1

Canada v. Sommerer, 2012 DTC 5126 [at 7219], 2012 FCA 207

Austrian foundation likely not a trust

Before allowing the taxpayer's appeal from an assessment made on the basis that s. 75(2) applied to attribute a capital gain realized by an Austrian private foundation (founded by the taxpayer's Austrian father) to the taxpayer, Sharlow J.A. noted (at para. 38) that she considered it a "doubtful proposition" that the foundation was a trust, even though the taxpayer's counsel had not argued this alternative basis for overturning the assessment.

First, "an Austrian private foundation is a juridical person with the legal capacity to own property in its own right" and thus is similar to a corporation (para. 40). Second, nothing gave the taxpayer "a legal or equitable claim to the corporate property that is different from that of a shareholder...of a corporation" (para. 42).

Furthermore, there was nothing in the constating documents or Austrian law to support the proposition that the foundation was the corporate trustee of a trust, i.e., that its right "to deal with its property is constrained by any legal or equitable obligations analogous to those of a common law trustee" (para. 41).

Words and Phrases
revert
Locations of other summaries Wordcount
Tax Topics - Income Tax Act - Section 248 - Subsection 248(5) 70
Tax Topics - Income Tax Act - Section 75 - Subsection 75(2) does not apply to FMV purchases 230
Tax Topics - Treaties treaty applies to economic double taxation 338
Tax Topics - Treaties - Income Tax Conventions - Article 13 attributed gain not included 393