The taxpayers acknowledged that capital losses (purportedly generated under schemes similar to Global Equity, 1207192 and Triad Gestco) should be denied under GAAR, but argued (based on s. 245(7)) that as GAAR could not be applied without the intervention of the Minister, interest began to accrue only from the time of the GAAR assessments.
Hogan J found that in Copthorne, the taxpayer was liable for failure to withhold on a deemed dividend that arose because of GAAR already having applied to reduce the related shares' paid-up capital. The taxpayers' argument was contradicted by the "authoritative obiter" in S.T.B. that s. 245(7) applied to third parties only. Furthermore, after noting the references in s. 245(7) to tax consequences to a person "following" the application of s. 245 being determined by assessment, he stated (at para. 39) that the definitions of "following" in dictionaries "clearly indicate that the notice of assessment does not trigger the application of the GAAR, but is rather subsequent to it." He concluded (at para. 43):
I see nothing …to suggest that the application of the GAAR is suspended until an assessment is issued. On the contrary, subsection 245(2)…uses mandatory language to provide that the tax consequences of abusive avoidance transactions shall be recast to deny tax benefits that are not reasonable in the circumstances.