Published In

Bulletin for International Taxation

Document Type

Article

Publication Date

2006

Subjects

Taxation; Supreme Court of Canada

Abstract

On October 19, 2005, the Supreme Court of Canada released the first decisions in which it considered the general anti-avoidance rule (GAAR) in Sec. 245 of the federal Income Tax Act (ITA). Effective for transactions entered into on or after September 13, 1988, this rule was enacted as a deliberate response to the Supreme Court of Canada decision in Stubart Investments Ltd. v. The Queen and was intended to reduce what the Court had described as "the action and reaction endlessly produced by complex, specific tax measures aimed at sophisticated business practices, and the inevitable, professionally guided and equally specialized taxpayer reaction." Designed "to distinguish between legitimate tax planning and abusive tax avoidance", the GAAR operates to deny a "tax benefit" that would otherwise result from an "avoidance transaction" or "series of transactions" of which the avoidance transaction is a part if the transaction results in a misuse of the provisions of the ITA, the Income Tax Regulations, the Income Tax Application Rules, a tax treaty, or any other relevant enactment, or an abuse having regard to those provisions read as a whole. Although the ITA defines the terms "tax benefit", "avoidance transaction", and "series of transactions", it is up to the courts to decide if these requirements are satisfied in the context of specific transactions and whether an avoidance transaction results in a misuse or abuse within the meaning of the statutory rule. In its unanimous decisions in Canada Trustco Mortgage Company v. Canada and Mathew v. Canada, the Supreme Court of Canada considered each of these issues and provided important guidance on the interpretation and application of the GAAR. This article reviews the decisions in Canada Trustco and Mathew in light of the previous tax jurisprudence of the Supreme Court of Canada and the lower court pronouncements on the operation of the GAAR. Part 2 outlines the facts of each case and the grounds on which the Crown sought to apply the GAAR, and Part 3 summarizes the decisions reached in each case by the Tax Court of Canada and the Federal Court of Appeal. Part 4 examines the Supreme Court of Canada decisions and considers the Court's general approach to tax law and the GAAR and its application of this approach to the facts of each case. Part 5 summarizes the conclusions of this examination.

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