A non-resident common-law commercial trust had been settled with cash and Canadian real estate by two (apparently non-resident) corporations. A subsequent sale of their interests in the trust to a third-party resident purchaser (along with the shares of the corporate trustee) was found to have given rise to a resettlement of the trust, so that losses of the trust disappeared and, thus, were not available to shelter gain on the immediately ensuing sale of the real estate by the trust (which on the sale had become resident in Canada).
After noting that in Mackay a transfer of losses to an unrelated party was found to be abusive, the Directorate went on to find (apparently in the alternative to the above resettlement finding) “that the effective transfer of losses of the Trust to benefit the unrelated new majority/sole beneficiary of the Trust should be subject to GAAR.”