The taxpayer participated in an avoidance scheme similar to the one in Maréchaux, in which she made donations, financed as to 80% by a non-interest-bearing loan with a term of 25 years received from one of the promoters ("Talisker"), in order to obtain tax credits greater than her cash outlay (of 20% of her reported gift amount). The evidence indicated that virtually all of the cash portion of her donation was indirectly used to pay fees, and that the 80% financing received from Talisker was used, through a series of transactions, to in turn finance Talisker. There was no evidence that the art works, which supposedly were to be purchased for a charity with the donated funds, actually existed.
In finding no "gift," as the taxpayer had received a significant financial benefit as the recipient of long-term, interest-free loans as part of the same transactions, Near JA stated (at para. 25):
In my view, Maréchaux stands for two propositions, as follows:
(a) a long-term interest-free loan is a significant financial benefit to the lender; and
(b) a benefit received in return for making a gift will vitiate the gift, whether the benefit comes from the donee or another person.
Respecting point (b), Near JA rejected the taxpayer's submission that McNamee v. McNamee, 2011 ONCA 533, established that a gift is only vitiated by the donor's receipt of a benefit if the donee (rather than a third party) provided it.