The Queen v Lewing, 2012 FCA

Originally published on IncomeTaxAct.ca on 14 November 2012. The law may have changed since; check the current text in the tax wiki.

The FCA unanimously held that the declaration did not constitute a credit and therefore the appeal could not reasonable succeed. The FCA explicitly stated that it did not endorse the TCC reasoning. They stated:

the resolution of September 11, 2001 whereby the trustees declared that a dividend of $2,200,003 “be paid” to Mr. J.J. Herbert and that Mr Herbert “shall have the right at any time to require payment of the amount of the dividend by the Trust to himself at any time” did not constitute a credit to Mr. Herbert’s account.