The FCA overturned Justice Woods' decision on the basis that the tax receipts failed to comply with the prescribed requirements because they stated the wrong amount donated. I.e., the receipts identified the full gift, but Woods only allowed the 10% cash portion as the real gift.
On donative intent, the FCA simply agreed with Woods J. that the issue wasn't properly before her, the Crown not having pled it. (Paras. 37-39.) Still, the FCA made some further comments on the issue, although Pizzitelli J's reasons may address the Court's implied test: that the judge find a kickback (as for one of the Mariano appellants) or "that there were extraordinary circumstances" (para. 48.) For Pizzitelli, in Mariano, though, key was this premise:
" ... This does not mean, however, that the expectation of an “inflated” tax receipt exceeding the value of the property transferred or the receipt of any other benefit does not vitiate a gift; all of which will depend on whether, in the circumstances, the taxpayer intended to impoverish himself."
In Castro, the FCA makes a cryptic comment, in context of 248(30)-(32), that leaves one feeling this issue of donative intent and inflated receipts may be a focal point in a Mariano appeal (expected).
On the request to have the cash part of the donation allowed, the FCA was categorical:
" In the present case, the amount of the cash donations does not appear on the receipts as prescribed by paragraph 3501(1)(h)(i) of the Regulations. The amounts that appear on the receipts are not the amount the respondent actually gave in cash according to the Judge’s determination. ...More importantly, in view of the language used in the Regulations, it is apparent that the receipts filed by Mr. Castro do not contain the prescribed information. More precisely, the amount of his respective cash donations do not appear, as prescribed by subparagraph 3501(1)(h)(i). The same can be said for the receipts filed by the respondents in the other appeals."
That problem doesn't seem to arise for GLGI investors, since the cash and software components seem to have been receipted separately.
See Canada v. Castro 2015 FCA 225 (Scott, Stratas, Boivin)