Hurwitz v. The Queen (February 19, 2020 – 2020 TCC 31, Bocock J.).
Précis: The taxpayer claimed business losses in 2013 and 2014 from a string quartet business and an abstract photography business. Prior to 2006 he had been employed as a violinist with the Toronto Symphony Orchestra. For the next 12 years he pursued string quartet activities and abstract photography. At trial he called no evidence of the string quartet activities and his counsel conceded that there was no business activity undertaken concerning the string quartet work. The Tax Court Judge found that the activity in connection with abstract photography did not meet the threshold of commercial activity necessary to sustain business losses. Thus the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.
Decision: This case essentially turned on the fact that the taxpayer, although a passionate photographer, was not pursuing an organized business activity in connection with his photographs:
 There was no material evidence of commercial effort. The only event approaching a showing, viewing, launch or signing in the two years was a solo exhibition in 2015. No real evidence was offered concerning the showing. Mr. Hurwitz admitted this relationship ended in 2015 because his work was not selling. There was however a gift at the end of December 2014. This gift was made by Mr. Hurwitz to the Kinsey Institute. Again, there was a personal nexus. The Kinsey Institute is located at Indiana University, Mr. Hurwitz’s alma mater. Beyond that, the “transaction”, if it may called that, was gratuitous. There was no commerciality to it. Its presence as evidence, given what Mr. Hurwitz is attempting to prove, seems incongruous and counter-productive.
 This is consistent with the non-commercial approach to actions concerning the endeavour. As noted above, even the lease of photographs mentioned above raises questions about whether income was received in the appeal years from the photographs lease. The proposed sale credits reflecting receipt of rental payments relate to amounts paid in 2003, 2008 and 2009. The photographs listed are constant throughout the term. There was no evidence of the culmination of the sale in 2015 or other testimony before the Court to suggest that rent was received in years other than those years (2003, 2008 and 2009) for which a credit reduction of the purchase price was offered. On balance, the Court cannot conclude photograph rent was received in 2013 and 2014.
 In the final analysis, Mr. Hurwitz has failed to discharge the onus as a taxpayer to approach and demolish to Minister’s assumptions regarding the non-existence of a business contained in the reply. There was no commercial endeavour when one considers the factors contained in Moldowan and Stewart. On that basis, the appeal is dismissed without costs in respect of the 2013 and 2014 taxation years. There was no source of business income against which the claimed expenses may be deducted.
Thus the appeal was dismissed. There was no order as to costs since this was an informal procedure appeal.