In Libfeld v. The King (Fed CA, 2023) the Federal Court of Appeal considered a further appeal (the first was to the Tax Court) from a Minster's denial of an "application for a new housing rebate (NHR)":
[5] Subsection 123(1) of the ETA defines “builder” as including a person who engages another person to carry on the construction of a residential complex in the course of a business or an adventure or concern in the nature of trade.
[6] In concluding that the appellant had not established that he had acquired the property from a “builder”, the Tax Court correctly identified the factors relevant to determining whether the vendor was engaged in a business or an adventure or concern in the nature of trade. These factors are set out in Happy Valley Farms Ltd. v. Minister of National Revenue, 1986 CanLII 7434 (FC), [1986] 2 C.T.C. 259, 1986 CarswellNat 375 (Fed. T.D.), cited by the Tax Court.
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[13] Since the appellant has not shown that the Tax Court made a reviewable error in deciding that the vendor was not a “builder” for the purposes of subsection 254(2) of the ETA and because all conditions outlined in that provision must be satisfied for this appeal to succeed, this appeal is therefore dismissed.
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