Canada: Mark-to-market available to non-financial institutions

International Tax Review is part of Legal Benchmarking Limited, 1-2 Paris Garden, London, SE1 8ND

Copyright © Legal Benchmarking Limited and its affiliated companies 2026

Accessibility | Terms of Use | Privacy Policy | Modern Slavery Statement

Canada: Mark-to-market available to non-financial institutions

diep.jpg

Nancy Diep

In a recent decision by the Federal Court of Appeal (FCA), it was confirmed that the adoption of mark-to-market valuation is not restricted to financial institutions for the purposes of computing income for Canadian tax purposes.

The case involved Kruger Inc. (the taxpayer), a Canadian-based company that carries on a paper products business, with most of its production destined for the US. In order to manage its foreign exchange exposure, the taxpayer started in the 1980s to purchase and sell foreign currency option contracts. By the mid 1990s, the taxpayer had a team of specialised derivatives traders that managed the options and other hedges. In effect, the company had become a speculative trader in derivatives as a separate business and, in reporting its profit for tax purposes, it adopted mark-to-market accounting for its trading business.

The Tax Court of Canada found that taxpayers were subject to an overarching principle of taxation that, unless the Income Tax Act provided otherwise, profits and losses could only be recognised when "realised".

In overturning the lower court decision, the FCA resorted to first principles in posing the question of whether the taxpayer's method of accounting provided an accurate picture of its income for the year and found that there is nothing at law that excludes mark-to-market accounting if it achieves this objective. Once a taxpayer demonstrates that mark-to-market accounting provides this accurate picture, the onus is on the Crown (government) to demonstrate an alternative method that provides a "more accurate" picture, which it failed to do here.

As a final interesting matter, the FCA also addressed the question of whether the option contracts qualified as inventory. In the court's view, the contracts were not property held for sale, a key requirement in the meaning of inventory, and so constituted a separate category of property that is not capital property and not inventory, the impact of which still must be accounted for by a taxpayer.

Nancy Diep (nancy.diep@blakes.com), Calgary

Blake, Cassels & Graydon

Tel: +1 403 260 9779

Website: www.blakes.com

more across site & shared bottom lb ros

More from across our site

A new focus on early intervention and increased AI use is transforming how tax authorities are approaching TP audits, though capacity-constrained jurisdictions risk falling behind
The French administration has used AI to detect undeclared swimming pools and verandas but always includes a human in the loop, the AI in Tax Forum heard
The UK tax authority’s deputy director of large business also reassured taxpayers that HMRC will not ‘nitpick’ returns
Sucafina’s tax chief was speaking at the ITR Pillar 2 Forum in London alongside experts from HMRC and other organisations
India’s Supreme Court rattled cross‑border structuring with its Tiger Global ruling. Subsequent rule changes narrowed the impact, but significant risks around GAAR, substance and treaty access persist
The UK-based big four spin-off firm has hired Marc Lien, who declared that most AI in professional services today is ‘cosmetic’
Projected revenue losses and exemption requests are harming the project’s capability and viability
HMRC secured lengthy prison sentences in a major payroll VAT fraud case, while law firms announced tax promotions and hires
Significant changes include an update to profit markers and an alteration to how an ‘inbound distributor’ is defined
ITR sat down for a pre-event interview with Tim Zech, WTS Germany, and Jeff Soar, WTS UK, keynote speaker at next week’s ITR AI in Tax Forum 2026 in London
Gift this article