In order for the taxpayers to acquire an interest in a shopping centre, a bank which held mortgages on the centre that were in foreclosure proceedings transferred the mortgages to a newly-formed subsidiary limited partnership, so that the mortgages, on which there was an accrued loss of $6 million, continued to maintain their cost amount of $16 million, with the taxpayers then becoming general partners of the partnership and the interest of the bank in the limited partnership subsequently being redeemed. Consequently, the taxpayers obtained the benefit of the accrued loss on the mortgages.
The Court concluded that the trial judge had erred in concluding, that because the entire series of transactions was one that was undertaken primarily for bona fide purposes other than to obtain the tax benefit represented by the accrued $6 million loss, that each transaction in the series was not an avoidance transaction. The transactions by which the bank became a limited partner of the partnership and transferred the mortgage receivables to the partnership had as their primary purpose to transfer the $6 million accrued loss to the partnership, and were avoidance transactions.
As the transactions also were abusive having regard to the similar result to the Mathew case, the Minister had correctly applied the GAAR to the taxpayers.