In order to finance the acquisition of U.S. companies, the taxpayer set up a "tower structure," a chain of subsidiaries which had different tax treatment in Canada and the U.S.. For U.S. tax purposes, the income the taxpayer received under this structure was interest income arising in the U.S.; for Canadian tax purposes, it realized its income in the form of dividends received by a subsidiary partnership from a subsidiary Nova Scotia unlimited liability company (which, in turn, received dividends from a subsidiary US limited liability company.) Both the dividends paid by the LLC (which came out of its exempt surplus) and the dividends paid by the Nova Scotia ULC and allocated to the taxpayer by the subsidiary partnership (which were eligible for the intercorporate dividend deduction when allocated to the taxpayer) were exempt from Canadian tax.
Paris J. found that the taxpayer could not claim the U.S. tax as a deduction from income under s. 20(12) of the ITA because the tax could be reasonably regarded as having been paid in respect of income from the share of the capital stock of a foreign affiliate (the US LLC). This approach was consistent with Art. XXIV, para. 2(a) of the Canada-US Convention, as the US income taxes were paid on US source income that was not taxed in Canada, so that relief under that paragraph was not available (para. 81). Canada's obligations under Article XXIV did not extend beyond relief from double-taxation, of which there was none here (para. 80).