The Importance of Family Resemblance: 'Series of Transactions' after Copthorne

Abstract

The concept of a series of transactions was a key issue in the Supreme Court of Canada’s decision in Copthorne Holdings Ltd. v. Canada. In light of that decision, this article reviews previous commentary on the topic and suggests a new approach based on the concept of family resemblance. Family resemblance recognizes that there are no core aspects that are the same in every series captured by a provision of the Income Tax Act. Rather, a series should be defined in relation to the purpose of the anti-avoidance provision in issue and the stylized set of transactions that Parliament was attempting to capture. Where there is a sufficient family resemblance between the stylized series and the transactions carried out, a series should be found. This concept is applied to both specific anti-avoidance rules and the general anti-avoidance rule. The article suggests how the Act could be clarified through amendments inspired by the concept of family resemblance.