Words and Phrases - "revert"
Canada v. Sommerer, 2012 DTC 5126 [at 7219], 2012 FCA 207
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).
|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|