real property

By services, 18 February, 2018

Resource Capital Fund IV LP v Commissioner of Taxation, [2018] FCA 41 (Federal Court of Australia), rev'd on various grounds [2019] FCAFC 51 -- summary under Article 6

Art. VI of the Australia-U.S. Convention defined real property to include “rights to exploit or to explore for natural resources.” In connection with an analysis that treated mining leases as real property for purposes of Art. VI, Pagone J noted (at para. 98):

In TEC Desert Pty Ltd v Commissioner of State Revenue (WA) (2010) 241 CLR 576 the High Court in a joint judgment observed that the position at common law was that a right to mine land gave no interest in the land, saying at 587, [29]:

1 March 2016 Internal T.I. 2016-0631181I7 - Specified foreign property - mineral rights -- summary under Specified Foreign Property

After noting that 2014-0522241I7 indicated that a right to mine for minerals in a mineral resource outside Canada falls within s. (b)(ii) of “foreign resource property” in s. 248(1), that “for such mineral right to be considered specified foreign property, the right would have to be tangible property, which is understood to include real property such as land and rights issuing out of, annexed to and exercisable within or about land,” and that the mineral right would be considered a tangible property coming within s.

By services, 28 November, 2015

Canada v. Larsen, 99 DTC 5757 (FCA) -- summary under Paragraph (a)

The taxpayer and his three siblings gave a lumber company the right to enter their land to remove timber during a five-month period for consideration of $70 per cubic metre of timber removed. Noël J.A. found (at p. 5760) that "the right to remove timber by severance is, at the time of the grant, an incorporeal hereditament in land which as such constitutes real property" and indicated that there is no requirement in the definition of qualified real property that the standing timber would be used at the time of grant in farming.

real property