Horatius:
"Of course, since court decisions are entirely reactive in nature, and judges are reluctant to discussion hypothetical issues that go beyond the questions before them in the case at hand, we'll always be behind the curve in dealing with these claims. No matter how many times "Theory X" gets shot down, they'll continue to insist that "Theory X+1 is the real deal! Those other decisions have no relevance!""
I just realized I do have a suggestion to address this issue. The Income Tax Act has an obscure and little used "reference question" provision:
173. (1) Where the Minister and a taxpayer agree in writing that a question of law, fact or mixed law and fact arising under this Act, in respect of any assessment, proposed assessment, determination or proposed determination, should be determined by the Tax Court of Canada, that question shall be determined by that Court.
A reference question is a mechanism by which persons (usually in very restricted circumstances) can go to a court and ask that court to decide a hypothetical issue. The most common use of reference questions in Canada is for a government to ask a court to determine whether a proposed law is or is not constitutional.
Normally, a person can only go to court and ask for interpretation of the meaning of a law where that person has a right affected by legislation. Legally, that is called "standing". Standing is not required for a reference question.
The Income Tax Act reference question mechanism would allow you, or any other person, to ask the Tax Court of Canada determine whether a FOTLish scheme or concept is correct. You would have to obtain agreement from the Crown that the question is one that should go to the Tax Court, but otherwise, the sky's the limit.
Frankly, I do not think it improbable that the Canada Revenue Agency would be eager to cooperate with a group of Canadian skeptics who collected a range of common FOTLish legal memes for review by the Tax Court in a reference question proceeding. It would benefit both - the skeptics would have a court's explicit ruling on whether a scheme is or is not correct, and the CRA would have a ruling to use in their responses to taxpayer inquiries and for public information purposes.
(And if you tell Mr. Menard of an impending reference question proceeding he might try to intervene and be conveniently prepositioned for arrest as he exited the Tax Court hearing.)
Chaetognath.
