The Canadian-resident taxpayer transferred shares to an Austrian private foundation, which held the shares under an arrangement which was found by C. Miller J to be a trust. At issue was whether s. 75(2) attributed the private foundation's taxable capital gain from its subsequent disposition of the shares to the taxpayer. The Minister argued that Art. 13(5) of the Austrian treaty (providing that the alienation of property (other than excepted property) by a resident of Austria was taxable only in Austria) did not apply, because s. 75(2) treated the foundation's proceeds of alienation as the taxpayer's proceeds.
Miller J., having already found on other grounds that s. 75(2) did not apply, rejected the Minister's argument. Article 13(5) was unambiguous in shielding the taxpayer from Canadian tax liability from the alienation of the shares. S. 75(2) did not deem the taxpayer rather than the foundation to be the alienator. Moreover, other articles in the Canada-Austria Convention and in other tax treaties contained specific exceptions where domestic tax laws would prevail over treaty provisions, and no such provision applied here.