The taxpayer argued that no imputed interest was required to be included in his income under s. 80.4(2) respecting shareholder advances because, under s. 80.4(3)(b), the amount of those advances had previously been required to be included in his income for a statute-barred year (although no such inclusion had been reported by him or assessed by the Minister). In rejecting this submission, Bowman TCJ stated (at pp. 1060-1061):
Just because subsection 15(2) provides that an amount "shall be included" in computing income, it does not follow that is "was included". Whether something was or was not included is purely a question of fact. Whether an amount is "required to be included" – words used, for example in subsection 104(12), or subsection 144(7) – is a question of law. The distinction between the two phrases is recognized throughout the Act. A good example of this is found in paragraph 20(1)(j), which permits a deduction when a shareholder's loan that was previously included in income under subsection 15(2) is repaid. Since 1983 the paragraph has read in part, as follows:
Such part of a loan or indebtedness repaid by the taxpayer in the year as was by virtue of subsection 15(2) included in computing his income for a preceding taxation year.
Prior to 1983 the relevant portion of the phrase read "such part of any loan repaid by the tax payer as was by subsection 15(2) required to be included… ."