[2014] 1 F.C.R. D-2
Aboriginal Peoples
Taxation
Appeal from decision by Tax Court of Canada (2009 TCC 189) dismissing appellant’s appeals from assessments made under Income Tax Act, R.S.C., 1985 (5th Supp.), c. 1—In reaching decision, T.C.C. not having benefit of Bastien Estate v. Canada, 2011 SCC 38, [2011] 2 S.C.R. 710, Dubé v. Canada, 2011 SCC 39, [2011] 2 S.C.R. 764 decisions—Appellant advisor to First Nations reserves providing spiritual, cultural activities, Anishinaabe language courses, healing ceremonies—T.C.C. finding appellant not entitled to Indian Act, R.S.C., 1985, c. I-5, s. 87 exemption as business income not personal property situated on reserve—T.C.C. finding applicant’s business carried on to large extent off reserves, placing emphasis on applicant’s presence in commercial mainstream, finding no nexus between business income received, occupancy of reserve lands by applicant personally—Core of T.C.C.’s decision inconsistent with Bastien—Test not whether applicant held income from business as part of entitlement of Indian qua Indian on reserve—Wording of s. 87 commanding to ask not whether owner of property situated on reserve, but whether property situated on reserve—Focus of analysis whether income earned by taxpayer situated on reserve in light of type of property, nature of taxation of property, purposes behind s. 87—Placing significant weight on percentages of time applicant physically present on or off reserves fastening on only one aspect of nature of income—Supreme Court changed meaning, significance of commercial mainstream factor such that T.C.C.’s analysis no longer correct—T.C.C. elevating commercial mainstream factor to level of determinative test, setting up false opposition between commercial mainstream activities, activities on reserve—T.C.C. analysing connecting factors in abstract, rather than assessing their relevance, weight in light of purposes underlying s. 87 brought alive by facts of case—Matter remitted to T.C.C. for redetermination in accordance with principles set out herein—Appeal allowed.
Kelly v. Canada (A-207-09, 2013 FCA 171, Stratas J.A., reasons for judgment dated June 26, 2013, 25 pp.)