The taxpayers purchased groups of paintings (approximately 40 or 50 in each year) for consideration that represented a substantial mark-up over the cost to the vendor ("CAAS") and that included a 15% retainer fee paid to CAAS for arranging for the donation of the paintings (almost immediately after their purchase by the taxpayers) to charities at an appraised value over three times the taxpayers' purchase price.
The Minister assessed on the basis that the fair market value of the donated paintings was equal to their cost to the taxpayers excluding the retainer fee.
In confirming this basis of reassessment, Campbell, J. found that the almost contemporaneous purchase transaction by the taxpayers were the best evidence of the paintings' fair market value and, with respect to the retainer fee, noted (para. 28) that "if the Appellants had decided to retain the art and not donate it, they would not have incurred this 15% retainer fee".