The taxpayer ("Kruger") engaged in extensive trading of FX options, mostly writing European style puts and calls, although it also purchased FX options. Noël CJ found that Kruger was entitled to use mark-to-market accounting for tax purposes in recognizing a loss on its FX option position for its 1998 year.
He went on to find (at para. 84) that “the Tax Court judge properly held that because the written options only embody a liability, they are not ‘property’ and therefore cannot form part of ‘inventory’;” and (at para. 91) that the purchased options also were not inventory, on the basis that Friesen had established that
although the requirement that qualifying property be “held for sale” is not spelled out in express terms, it nevertheless forms part of the defined meaning of “inventory” [in s. 248(1)]
He added (at para. 95):
It necessarily follows that the purchased options are a type of property that is neither capital property nor inventory.