Income Tax Act

Version of section 245 from 2004-08-31 to 2005-05-12:

Marginal note:Definitions
  •  (1) In this section,

    tax benefit

    avantage fiscal

    tax benefit means a reduction, avoidance or deferral of tax or other amount payable under this Act or an increase in a refund of tax or other amount under this Act; (avantage fiscal)

    tax consequences

    attribut fiscal

    tax consequences to a person means the amount of income, taxable income, or taxable income earned in Canada of, tax or other amount payable by or refundable to the person under this Act, or any other amount that is relevant for the purposes of computing that amount; (attribut fiscal)

    transaction

    opération

    transaction includes an arrangement or event. (opération)

  • Marginal note:General anti-avoidance provision

    (2) Where a transaction is an avoidance transaction, the tax consequences to a person shall be determined as is reasonable in the circumstances in order to deny a tax benefit that, but for this section, would result, directly or indirectly, from that transaction or from a series of transactions that includes that transaction.

  • Marginal note:Avoidance transaction

    (3) An avoidance transaction means any transaction

    • (a) that, but for this section, would result, directly or indirectly, in a tax benefit, unless the transaction may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit; or

    • (b) that is part of a series of transactions, which series, but for this section, would result, directly or indirectly, in a tax benefit, unless the transaction may reasonably be considered to have been undertaken or arranged primarily for bona fide purposes other than to obtain the tax benefit.

  • Marginal note:Where s. (2) does not apply

    (4) For greater certainty, subsection 245(2) does not apply to a transaction where it may reasonably be considered that the transaction would not result directly or indirectly in a misuse of the provisions of this Act or an abuse having regard to the provisions of this Act, other than this section, read as a whole.

  • Marginal note:Determination of tax consequences

    (5) Without restricting the generality of subsection 245(2),

    • (a) any deduction in computing income, taxable income, taxable income earned in Canada or tax payable or any part thereof may be allowed or disallowed in whole or in part,

    • (b) any such deduction, any income, loss or other amount or part thereof may be allocated to any person,

    • (c) the nature of any payment or other amount may be recharacterized, and

    • (d) the tax effects that would otherwise result from the application of other provisions of this Act may be ignored,

    in determining the tax consequences to a person as is reasonable in the circumstances in order to deny a tax benefit that would, but for this section, result, directly or indirectly, from an avoidance transaction.

  • Marginal note:Request for adjustments

    (6) Where with respect to a transaction

    • (a) a notice of assessment, reassessment or additional assessment involving the application of subsection 245(2) with respect to the transaction has been sent to a person, or

    • (b) a notice of determination pursuant to subsection 152(1.11) has been sent to a person with respect to the transaction,

    any person (other than a person referred to in paragraph 245(6)(a) or 245(6)(b)) shall be entitled, within 180 days after the day of mailing of the notice, to request in writing that the Minister make an assessment, reassessment or additional assessment applying subsection 245(2) or make a determination applying subsection 152(1.11) with respect to that transaction.

  • Marginal note:Exception

    (7) Notwithstanding any other provision of this Act, the tax consequences to any person, following the application of this section, shall only be determined through a notice of assessment, reassessment, additional assessment or determination pursuant to subsection 152(1.11) involving the application of this section.

  • Marginal note:Duties of Minister

    (8) On receipt of a request by a person under subsection 245(6), the Minister shall, with all due dispatch, consider the request and, notwithstanding subsection 152(4), assess, reassess or make an additional assessment or determination pursuant to subsection 152(1.11) with respect to that person, except that an assessment, reassessment, additional assessment or determination may be made under this subsection only to the extent that it may reasonably be regarded as relating to the transaction referred to in subsection 245(6).

  • NOTE: Application provisions are not included in the consolidated text;
  • see relevant amending Acts. 1970-71-72, c. 63, s. 1“245”;
  • 1986, c. 6, s. 124;
  • 1988, c. 55, s. 185.
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