[2011] 4 F.C.R. D-6
Income Tax
Reassessment
Appeal from Tax Court of Canada (T.C.C.) decision (2010 TCC 275) dismissing appellant’s appeal from reassessment of tax liability for 1989 taxation year—Appellant claiming net capital loss on disposition of shares, loss disallowed by Minister of National Revenue—Interpretation of Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1, s. 33(4)(a) (transitional provision) regarding application of former s. 55(1) at issue—T.C.C. holding that former s. 55(1) applying to appellant’s share disposition since disposition part of “series of transactions” pursuant to s. 33(4)(a); thus, appellant prevented from claiming loss—While Act, s. 55(1) repealed in 1988, s. 33(4)(a) continuing to apply s. 55(1) to transactions in specific circumstances for given period—T.C.C. erring in holding that “series of transactions” in Act, s. 33(4)(a) not requiring that transactions be pre-ordained—S. 33(4)(a) providing that s. 248(10), which extends common law meaning of “series of transactions” to include related transactions completed in contemplation of series even though not themselves pre-ordained, not applying to determine whether transaction part of series of transactions––Transitional provision’s exclusion of s. 248(10) positive indication that “series of transactions” in s. 33(4)(a) having common law meaning; therefore, transactions must be pre-ordained to fall within transitional provision—Based on material before T.C.C., appellant’s disposition of shares not part of pre-ordained “series of transactions” so s. 55(1) not applying thereto—Appeal allowed.
Toronto-Dominion Bank v. Canada (A-285-10, 2011 FCA 221, Evans J.A., judgment dated July 6, 2011, 21 pp.)