Category Archives: Income Tax Regulations

Capital Cost Allowance Limit Leasing Business – Sas Ansari

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Capital Cost Allowance Limit: Leasing Business OR Income From Property?

Thibeault v The Queen, 2015 TCC 271

At issue was whether the revenue from the Taxpayer’s activities was income from a leasing business or income from property, and therefore whether the limit in ITA Regulations 1100(15) applied to limit the Capital Cost Allowance (CCA) deductible to net leasing revenues.


The Income Tax Act does not permit a deduction for capital costs (s 18(1)(b)) other than when calculating income from business or property, in which case such part of the cost as allowed by the regulations is deductible (s 20(1)(a)).

In the ITA Regulations, subsection 1100(1) sets out the permissible deductions for purposes of ITA 20(1)(a), while 1100(15) limits the total deduction for property that is “leasing property” to net revenues from the lease of that property.

“Leasing property” is defined in ITA Regulations 1100(17) as depreciable property (with some exceptions) used primarily to earn gross revenue consisting of rent, royalty, or leasing revenue.  The definition of rent is expanded by 1100(17.2) to include gross revenue from (i) the right to use or occupy property, and (ii) services ancillary to use or occupation of a person of the said property.   This extended definition does not apply where the individual uses the property in a business operated where the person supervises the business personally and continuously (1100(17.3(b)).

The issue, therefore, was whether the individual has a source of income that is a business or property as per the test set out in Stewart v Canada2002 SCC 46.

The Federal Court of Appeal in Oke v Canada, 2010 FCA 350, considered the concept of operating a business in subsection 1100(17.3) of the ITA Regulations. The following principles were set out in distinguishing between income from business or property where the revenue generated is by allowing access or use of property:

  • Business income is distinguished from property income on the basis of the level of activity in earning revenues by the taxpayer; Wertman v. M.N.R., [1964] C.T.C. 252, 64 D.T.C. 5158 (Ex. Ct.); Walsh v. M.N.R., [1965] C.T.C. 478, 65 D.T.C. 5293 (Ex. Ct.); Burri v. The Queen, [1985] 2 C.T.C. 42, 85 D.T.C. 5287 (F.C.T.D.) – and the case Canadian Marconi Co. v. The Queen[1986] 2 S.C.R. 522.
  • The level of activity, to render a source of income business and not property, must be one that goes beyond that which customarily relate to the rental or use of that particular property;

Sas Ansari, BSc BEd PC JD LLM PhD (exp) CPA In-Depth Tax 1, 2 &3

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Proof of Charitable Donations – Onus on the Donor

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Proof of Charitable Donations – Onus on the Donor

Ehiozomwangie v The Queen, 2013 TCC 145

The taxpayer had claimed tax credits for a number of donations apparently made to a number of charitable organizations. The MNR reassessed to deny almost all of the donations on varying bases.  The TCC agreed with all those bases and denied the taxpayer’s appeal on all but one amount (on the basis of the Crown’s concession).


The Taxpayer bears the onus to prove, on a balance of probabilities, that s/he made the charitable donations to the organizations that issued the receipts in the amounts claimed on the face of the receipts, and that the receipts contain all of the information prescribed by the Income Tax Regulations.

Subsection 118.1(1) defines “total charitable gifts” and makes specific reference to the “fair market value of a gift”.  Paragraph 118.1(2)(a) refers to receipts and requires that, before being able to claim a tax credit for gift, the gift is proven by filing with the Minister a receipt for the gift made that contains the prescribed information.  Subsection 3501(1) of the Regulations, in turn, set out the prescribed information that must be on a gift receipt for it to be valid. This information is:

3501. (1) Every official receipt issued by a registered organization shall contain a statement that it is an official receipt for income tax purposes and shall show clearly in such a manner that it cannot readily be altered,

(a) the name and address in Canada of the organization as recorded with the Minister;

(b) the registration number assigned by the Minister to the organization;

(c) the serial number of the receipt;

(d) the place or locality where the receipt was issued;

(e) where the donation is a cash donation, the day on which or the year during which the donation was received;

(e.1) where the donation is a gift of property other than cash

(i) the day on which the donation was received,

(ii) a brief description of the property,


(iii) the name and address of the appraiser of the property if an appraisal is done;

(f) the day on which the receipt was issued where that day differs from the day referred to in paragraph (e) or (e.1);

(g) the name and address of the donor including, in the case of an individual, his first name and initial;

(h) the amount that is

(i) the amount of a cash donation, or

(ii) where the donation is a gift of property other than cash, the amount that is the fair market value of the property at the time that the gift was made;

(i) the signature, as provided in subsection (2) or (3), of a responsible individual who has been authorized by the organization to acknowledge donations; and

(j) the name and Internet website of the Canada Revenue Agency.

Donations in Kind

Although the receipt is required to show the fair market value of the gift in kind, this is not always sufficient proof necessary to succeed in claiming the credit.  The taxpayer must provide some indication of the FMV of the alleged donations.  In Tu Van Le v. The Queen, 2011 TCC 292, it was stated that a taxpayer who wished to claim a credit for donations in kind must provide evidence with respect of the fair market value of the items donated even where the receipt otherwise meets the prescribed requirements.

Donative Intent

A charitable donation must be a gift.  A gift requires donative intent, which is the intention to confer a benefit to another by absolutely transferring property without any desire for a benefit (other than the tax credit) or actual receipt of a benefit in return.  Payments to charitable organizations that include some sort of benefit (parking, attendance, membership, etc) must differentiate between the value paid for the benefit and the value given as a gift.