Ottawa Air Cargo Centre Ltd. v. The Queen, 2007 DTC 661, 2007 TCC 193, aff'd 2008 DTC 6177, 2008 FCA 54 -- summary under Subsection 55(2)

Lamarre J. rejected the taxpayer's submission that deemed dividends received by the taxpayer were "subject to" Part IV tax in the sense that the taxpayer could have remitted Part IV tax on those taxable dividends and thus would have been entitled to a refund of Part IV tax. The taxpayer, in fact, did not do this and instead applied non-capital losses against an assessment of Part IV tax when it was made by the Minister on the basis that s. 55(2) did not apply to the deemed dividends. Lamarre J. found (at para. 21) that "the requirement of an actual refund of Part IV is mandatory for the dividend to be re-characterized as a capital gain under subsection 55(2)".