Income Tax Severed Letters - 2000-08-04

Miscellaneous

17 May 2000 2000-0020146 - RRA FOREIGN TAX CREDIT

Unedited CRA Tags
147.1(2)

Principal Issues: Are payments made under the U.S. Railroad Retirement Act for Tier 1 and Tier 2 benefits considered social security taxes?

Position: Since 1965, our position has been that Tier 1 and Tier 2 payments under the U.S. Railroad Retirement Act are considered social security taxes.

Reasons: Even though Tier 2 benefits are considered pension benefits for purposes of the Act, we have allowed the contributions in respect of the Tier 2 benefits to be treated as either pension contributions or foreign taxes.

15 May 2000 2000-0020246 - YOUTH SERVICE CANADA PROGRAM

Unedited CRA Tags
3 56

Principal Issues: Income tax treatment of payments to participants under Youth Service Canada program.

Position: Amounts received are taxable.

Reasons: Participants enter into a contract to provide services for which they receive a weekly stipend and a completion bonus. This question was addressed on September 16, 1994 in letter 941956.

Ruling

1998 Ruling 9718693 F - RÉORGANISATION - PAPILLON

Unedited CRA Tags
55(3)(b)

Position Adoptée:
Décisions demandées d'ordre habituels

Ministerial Correspondence

20 July 2000 Ministerial Correspondence 2000-0033604 F - SENS DU MOT DON

Unedited CRA Tags
110.1 118.1

Position Adoptée:
Aucune. La question est présentement sous étude.

18 July 2000 Ministerial Correspondence 2000-0034154 F - GAINS DE LOTERIE

Unedited CRA Tags
89(1)

Principales Questions:
Est-ce que les sommes non imposables selon le par. 3 du IT-404 font partie du CDC ?

Position Adoptée:
Non

6 July 2000 Ministerial Correspondence 2000-0034404 - Designated benefit out of a RRIF

Unedited CRA Tags
146.3 60(L)

Principal Issues: Can a portion of a taxpayer's RRIF be transferred on his death to his spouse's RRIF and taxed to the spouse.

Position: Yes

Reasons: The amount is considered to be a designated benefit and the amount can be transferred to the spouse's RRIF; the amount so transferred may be taxed to either the deceased or the spouse and, if taxed to the spouse, would be eligible for a deduction if transferred to the spouse's RRIF.

29 June 2000 Ministerial Correspondence 2000-0028094 - PHSPs FOR SMALL BUSINESSES

Unedited CRA Tags
20.01

Principal Issues: Whether a plan for a sole proprietor (who has no employees) enters into an arrangement to have family medical costs paid through a carrier for a fee i.e. a cost plus plan, qualifies as a PHSP

Position: No

Reasons: The necessary elements of insurance do not exist (para. 3 of IT-339R2). In particular no person has undertaken to indemnify another-proprietor has assumed all of the risks.

29 June 2000 Ministerial Correspondence 2000-0029234 - Transfer of property from an RRSP to RRIF

Unedited CRA Tags
206(4)

Principal Issues: When a transfer of property is made from an RRSP to RRIF of the same annuitant, is the transfer made at the fair market value of the property?

Position: Yes.

Reasons: Subsection 206(4) deems the RRIF and RRSP trusts to deal at non-arm's length, and transfer therefore is deemed by same provision to occur at fair market value.

6 June 2000 Ministerial Correspondence 2000-0025614 F - Divorce - REER

Unedited CRA Tags
146(16) 56(1)a)(ii) 60j.1)

Principales Questions:

25 April 2000 Ministerial Correspondence 2000-0015044 - TAXATION OF INDIAN FISHING INCOME

Unedited CRA Tags
81(1)a)

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

XXXXXXXXXX

Dear XXXXXXXXXX:

Thank you for your letter of February 29, 2000, concerning the place at which the majority of commercial fishery work is done.

Technical Interpretation - External

26 July 2000 External T.I. 2000-0013115 - Computer Data Cable

Unedited CRA Tags
20(1)(d) Reg1100

Principal Issues:
will computer data cable be included in class 10 of schedule II as a result of the exception to the exclusion in 10(f)(iv)?

Position: Yes.

Reasons:
class 3 data communication equipment same as data handling equipment classc10.

26 July 2000 External T.I. 2000-0019735 - Security Equipment -Classification

Unedited CRA Tags
20(1)a)

Principal Issues:
Can it be said that security equipment that is installed in a building due to nature of business operated in the building is class 8 equipment rather than class 1.

Position: No.

Reasons:
In order to be in class 8 the property must be described in paragraph (b) .

25 July 2000 External T.I. 2000-0011595 - share of a capital stock of a family farm

Unedited CRA Tags
110.6(1) 70(10)

Principal Issues: Whether there is a requirement under the definitions of "share of the capital stock of a family farm corporation" in 70(10) and 110.6(1) that the corporation be currently using the property principally in the course of carrying on the business of farming and that the period of active farming has to coincide with the ownership of the property by the corporation. In other words, can active farming by a specified person prior to the acquisition of the land by the farm corporation will qualify for the purposes of the definition.

Position: No there is no such requirement. However, the 24 month test in paragraph (a) of the definition in 110.6(1) is based on the use of the property during a 24 month period while it is owned by the corporation.

Reasons: Based on the words of the provision.

25 July 2000 External T.I. 2000-0031395 - Capital Gains Exemption

Unedited CRA Tags
84.1(2)(a.1)(ii) 110.6

Principal Issues: Designation of shares for purposes of the capital gains deduction and subparagraph 84.1(2)(a.1)(ii).

Position: We agree that Mr. A can designate the shares that he purchases from Mr. B as being the shares sold to C, and that, as a consequence, the shares purchased from Holdco B would be the shares sold to Holdco A.

Reasons: Since there is no clear prohibition against selecting the shares in respect of which the deduction was claimed and no obvious reason that such selection ought not to be available, it is our view that a taxpayer may identify the shares represented by the deduction claimed. If the taxpayer includes a designation in his return that specifies the shares in respect of which the exemption is claimed, the Agency will consider this designation binding in respect of the future application of subparagraph 84.1(2)(a.1)(ii).

25 July 2000 External T.I. 2000-0032585 - RESEARCH GRAT-TRAVELLING EXPENSES

Unedited CRA Tags
56(1)(0)

Principal Issues: An individual, who received a research grant, will carry out research in Scotland. As a result of the nature of the work, a research assistant is required for safety reasons. We have been asked whether the individual is entitled to deduct the assistant's airfare ($XXXXXXXXXX ) and certain other costs (food and accommodation) in respect of the assistant.

Position: NO

Reasons: Pursuant to comments in paragraph 31 of IT-75R3, the individual is not entitled to deduct the expenses.

25 July 2000 External T.I. 1999-0014665 - Losses and options

Unedited CRA Tags
111

Principal Issues: Whether transactions involving the purchase and sale of options by a taxpayer should be viewed as being on account of income or capital and discussion of loss application rules.

Position: Question of fact - general information provided.

Reasons: See above.

25 July 2000 External T.I. 2000-0032715 F - Alinéa g) de catégorie 16 annexe II Regl.

Unedited CRA Tags
20(1)a)

Principales Questions: L'alinéa g) de la catégorie 16 de l'annexe II du Règlement s'applique-t-elle seulement aux entreprises de transport?

Position Adoptée: L'alinéa g) de la catégorie 16 de l'annexe II du Règlement peut viser des camions d'un contribuable qui exploite une entreprise de vente au détail si le contribuable utilise ses camions principalement pour transporter les marchandises qu'il vend à ses clients pourvu que les autres conditions prévues à cet alinéa relativement au camion soient rencontrées.

24 July 2000 External T.I. 2000-0031365 - GOVERNMENT COMPENSATION

Unedited CRA Tags
9(1)

Principal Issues: An individual is a bear hunting guide each spring. However, in March of 1999, the client received $1,000 from the Province of Ontario which represented compensation for income he or she lost when the bear hunt was cancelled in the spring of 1999. Is the $1,000 taxable as business income?

Position: Yes

Reasons: As the amount covers an income deficiency, the amount would be taxable as business income.

21 July 2000 External T.I. 2000-0014035 - principal residence-mobilehome & hectarerule

Unedited CRA Tags
40(2)b)

Principal Issues: Whether XXXXXXXXXX acres can be included as part of the principal residence of an individual when zoning restrictions prevent such property from being subdivided. The taxpayer purchased the property then moved a mobile home on the property.

Position: Question of fact; however, likely no.

Reasons: The position in paragraphs 15 and 16 of IT-120R5 (that land in excess of 1/2 hectare may qualify is zoning restrictions do not allow small lot sizes) is based on court cases in which land and a home were acquired together. In the situation where land is acquired without a residence and later a mobile home is moved onto the site, it would be difficult to accept that the additional land was purchased in order to acquire a property as a residence.

21 July 2000 External T.I. 2000-0026115 - FARM ROLLOVERS

Unedited CRA Tags
70a) 73(3)

Principal Issues: General comments on subsection 70(9), 73(3), 73(1) and 70(6) of the Act.

Position: N/A

Reasons: N/A

20 July 2000 External T.I. 1999-0013195 - ACB & proceeds of disposition on expiry...

Unedited CRA Tags
70(5) 70(6) 69(1)(b)

Principal Issues: 1) How is the ACB and proceeds of disposition calculated for an interest in a substitution? 2) Is a capital loss that is not denied by reason of 40(2)(g)(iii) on the expiry of an institute's interest in a substitution recognized on the death of the institute?

Position: 1) ACB is based on the FMV at the time the substitution was created unless 70(6) applies and the proceeds of disposition are based on FMV immediately before death. 2) Any capital loss so created is recognized unless 40(2)(g)(iii) applies.

Reasons: 1) 70(5) 2) Other than 40(2)(g)(iii), there is no statutory reason to deny a capital loss that arises as a result of the deemed disposition under 70(5) immediately before death; however the FMV of the institute's interest in the substitution at that time, and thus the deemed proceeds of disposition under 70(5)(a), do not reflect the imminence of death for the reasons set out in the Mastronardi decision.

20 July 2000 External T.I. 2000-0027385 - QUALIFIED FARM PROPERTY

Unedited CRA Tags
110.6(1)

Principal Issues: Whether land owned by the taxpayer constitutes "qualified farm property" when the gross revenue test is met by a great-grandparent?

Position: Yes

Reasons: Provided a parent, grandparent or great-grandparent meets the gross revenue test in clause (a)(vi)(A) of the definition of qualified farm property. We have considered this issue before see E9919475.

20 July 2000 External T.I. 2000-0035415 - SPECIFIC IDENTIFICATION OF SECTION 7 SHARES47(1)

Unedited CRA Tags
7(1)(a) 53(1)(j)

Principal Issues: Can we provide a numerical example to illustrate the new specific identification position described in Income Tax Technical News # 19?

Position: Yes.

Reasons: We prepared an example illustrating the identical property provisions and the specific identification position described in Technical News # 19.

20 July 2000 External T.I. 1999-0013365 - expiry of a life interest

Unedited CRA Tags
69(1)(b) 70(5) 70(6)

Principal Issues: 1) Is a capital loss created on the expiry of a life interest recognized on the death of the life interest holder if it is not denied by reason of 40(2)(g)(iii)? 2) Can the ACB of the remainder interest be increased by amounts paid by the estate for capital additions to the property or for the acquisition of the rights of the life interest holder?

Position: 1) yes 2) yes

Reasons: 1) Other than 40(2)(g)(iii), there is no statutory reason to deny a capital loss that arises on the deemed disposition of a life interest under 70(5) immediately before death; however the FMV of the life interest at that time, and thus the deemed proceeds of disposition under 70(5)(a), do not reflect the imminence of death for the reasons set out in the Mastronardi decision. 2) While there is no provision which would increase the ACB of the remainder interest upon the expiry of the life interest, amounts paid for capital improvements to the property or for the rights of the life interest holder are added to the ACB of the property subject to any adjustment required by 69(1)(a).

20 July 2000 External T.I. 2000-0036735 - SPLIT DOLLAR INSURANCE

Unedited CRA Tags
6(1)

Principal Issues: Split dollar arrangements using universal life insurance products. Clarification of comments in 990052.

Position: We are not prejudging whether a split dollar arrangement can be effected with a universal life insurance policy.

Reasons: Determination of taxable benefit, if any, can only be made after a review of the relevant facts etc.

20 July 2000 External T.I. 2000-0028215 - legal fees to appeal pension plan branch decision

Unedited CRA Tags
60(0.1)

Principal Issues: Whether legal fees to be incurred by each member of a group of former employees will be deductible for income tax purposes. The legal fees are to be incurred in appealing a decision by the XXXXXXXXXX that denied the partial wind-up of the pension plan of the group of former employees.

Position: Maybe.

Reasons: Paragraph 60(o.1) of the Act allows a taxpayer to deduct, within certain limits, legal expenses paid to collect or establish a right to a pension benefit or retiring allowance, subject to specific quantum limits.

20 July 2000 External T.I. 1999-0008445 F - Produit de Disposition

Unedited CRA Tags
54 85.1

Principal Issues: Est-ce que le produit de disposition d'actions correspond au prix de vente inclus dans convention ou la JVM des actions reçues en échange lors du closing si cette JVM a diminuée?

Position: JVM des actions

Reasons: Voir analyse

20 July 2000 External T.I. 2000-0028705 - MEDICAL EXPENSE-HEALING TOUCH THERAPY

Unedited CRA Tags
118.2(2)a) 118.4(2)a)

Principal Issues: Whether "healing touch therapy" qualifies as a medical expense under the Act.

Position: Likely not.

Reasons: By virtue of paragraph 118.2(2)(a) of the Act, payments made to a therapist (or any other medical worker for that matter), for medical or dental services will qualify for the medical expense tax credit only if the person to whom payments are made is a "medical practitioner," "dentist," "pharmacist," "nurse," or "optometrist." Paragraph 118.4(2)(a)of the Act provides that, for the purposes of section 118.2 of the Act, a reference to a "medical practitioner," "dentist," "pharmacist," "nurse," or "optometrist" means, for a service rendered, a person who is authorized to practice as such according to the laws of the jurisdiction in which the service is rendered. Accordingly, one must look to provincial legislation to determine whether payments to a medical practitioner will qualify for the medical expense tax credit.

20 July 2000 External T.I. 2000-0029075 - deduction for lump-sum - union settlement

Unedited CRA Tags
110.2

Principal Issues: Whether salary or wages, which are to be received as a result of a collective bargaining agreement between the employer and its unionized employees will qualify under these new rules. An arbitrator was involved in the process, but only with respect to the interpretation of the agreement.

Position: No.

Reasons: Payments are not described by paragraph (a) of the definition of "qualifying amount" in section 110.2, i.e., received pursuant to an order or judgment of a competent tribunal, an arbitration award or a contract by which the payor and the individual terminate a legal proceeding.

20 July 2000 External T.I. 2000-0018755 - Capital Cost allowance & Depletion Re Tree...

Unedited CRA Tags
9 10 28 Shedule VI

Principal Issues:
Would there be any capital cost allowance, depletion allowance, or/and other deductions to be claimed by a taxpayer in respect of the cost of the planted seedlings in his/her tree-growing operation when there is tree loss each year due to natural causes. This tree-growing operation includes planting certain types of tree seedlings on the taxpayer's land and growing the trees from these seedlings to a certain height. These trees would be sold on a wholesale distribution basis to nurseries and greenhouses and, in turn, these trees would be re-sold to landscape contractors and other customers for planting.

Position:
No capital cost allowance and depletion allowance in respect of the planted seedlings would be allowed. There might be inventory deduction in respect of tree loss, depending upon the circumstances of the situation.

Reasons:
Similar to the situation in a Christmas tree growing operation as described in paragraph 14 of Interpretation Bulletin IT-373R2, in the case at hand, a stand of trees is not viewed as a timber limit since the output is trees, not timber or similar products. Therefore, the depletion allowance provisions in Schedule VI of the Regulations are not applicable. Furthermore, there is no other depletion allowance or capital cost allowance that would be available for deduction under the Act or Regulations. When the accrual method for income reporting is used and some of the inventory of trees that were being grown for sale are lost due to natural causes, it is expected that the value of the inventory would be affected. Depending upon the particular inventory valuation and inventory reporting that is used, there may or may not be a deduction available. This determination would have to be made by examining the relevant facts of the actual situation. The case at hand can be differentiated from the case of Northwood Pulp and Timber Limited wherein the Court decided that silviculture expenses would be considered as period costs and not inventory costs. The case at hand is similar to a nursery operation and it is not considered as a timber harvesting operation. (See also file #E58517 dated September 19, 1989, wherein we opined that tree seedlings were inventory in a nursery operation.)

20 July 2000 External T.I. 2000-0029455 - ONTARIO TAX CREDITS FOR DECEASED SPOUSE

Principal Issues: Calculation of the Ontario tax credits when one spouse dies in the year.

Position: If a spouse died in 1999, the surviving spouse may claim the Ontario tax credits on his or her return. However, the surviving spouse cannot claim an additional sales tax credit for the deceased spouse. In this situation, it explains that the surviving spouse should only use his or her net income when calculating the "income for Ontario tax credits."

Reasons: Based on the "Information Sheet About Ontario Tax Credits"

20 July 2000 External T.I. 2000-0034905 - DEDUCTIBILITY OF BUSINESS EXPENSES

Unedited CRA Tags
9(1) 18(1)a) 18(1)h) 67

Principal Issues: Whether the travelling expenses of a group of farmers incurred when visiting New Zealand may be deducted for income tax purposes.

Position: Question of fact.

Reasons: Under subsection 9(1) of the Act, a taxpayer's income from a business or property is the "profit" therefrom for the year, subject to the particular rules in Part I of the Act. Some of these rules are: (i) under para. 18(1)(a), expenses must be incurred for the purpose of producing or gaining income from a business or property, (ii) under para. 18(1)(h), personal or living expenses may not be deducted, except for travel expenses incurred by a taxpayer while away from home in the course of carrying on the taxpayer's business, (iii) under section 67, an outlay or expense is only deductible in computing income to the extent that it was reasonable in the circumstances, and (iv) under paragraph 18(1)(b), an outlay, loss or replacement of is not deductible unless expressly permitted under the Act.

19 July 2000 External T.I. 1999-0009695 - Foreign reporting requirements

Unedited CRA Tags
233.3

Principal Issues: Whether any entity in the structure described in the letter needs to file an information return under the foreign reporting requirement rules and, if yes, which entity

Position: Yes, subsection 233.3 would apply to the partnership which holds the foreign real property

Reasons: Because it is a specified Canadian entity

18 July 2000 External T.I. 2000-0027605 - deficiency, failing or shut down of system

Unedited CRA Tags
class43.1 1104(14)

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

2000-002760
XXXXXXXXXX Peter Lee
(613) 957-8977

Attention: XXXXXXXXXX

July 18, 2000

Dear Sirs:

Re: Technical Interpretation Regarding Regulation 1104(14) and Class 43.1

18 July 2000 External T.I. 2000-0033395 F - CONJOINT DE FAIT DE MEME SEXE

Unedited CRA Tags
146.01

Principales Questions: Doit-on considérer un partenaire de même sexe pour établir l'éligibilité d'un contribuable au RAP ?

Position Adoptée: Oui

18 July 2000 External T.I. 2000-0033755 - Same Business

Unedited CRA Tags
1103(1) Reg

Principal Issues: Meaning of "same business" in Reg 1103(1)

Position: question of fact

Reasons: question of fact

18 July 2000 External T.I. 2000-0026285 - GIFT CERTIFICATE

Unedited CRA Tags
110.1 118.1

Principal Issues: Follow-up to 2000-001680

Position:

Reasons:

18 July 2000 External T.I. 2000-0019395 - CLAIM FOR MEAL EXPENSES

Unedited CRA Tags
8(1)g)

Principal Issues: Whether employees of XXXXXXXXXX working on runs which do not leave the municipality or metropolitan area for more than fours hours should be allowed a deduction for meal expenses under paragraph 8(1)(g) of the Act.

Position: No.

Reasons: The CCRA will administratively allow meal deductions after four hours away from the municipality, this position will not be extended to include situations which do not meet the four hour requirement.

17 July 2000 External T.I. 2000-0017325 - partnership information returns

Unedited CRA Tags
162(7.1) 220(1)(d) 220(2.1)

Principal Issues: Whether penalties apply where partnership information return filed voluntarily but later than time if there had been requirement to file?

Position: no

Reasons: wording of 162(7.1) of Act

17 July 2000 External T.I. 2000-0010935 - partner information return

Unedited CRA Tags
152(4.1) 220(2.1) 162(7.1)

Principal Issues: What is the time period for assessment of partnership information returns where demand by Minister for the return?

Position: 3 years from the later of (a) the day when the return would have been required to file a return if no Ministerial waiver existed and (b) the day when the return is actually filed (whether voluntarily or pursuant to Ministerial demand)

Reasons: wording of 152(1.4)

14 July 2000 External T.I. 2000-0015245 F - ÉTUDIANT A TEMPS PLEIN - T2202A

Unedited CRA Tags
118.6(2)

Principales Questions:
Déterminer s'il est acceptable que XXXXXXXXXX utilise une politique basée sur celle utilisée pour les prêts et bourses pour déterminer le statut d'un étudiant à temps plein.

Position Adoptée:
Cette position est acceptable tant que XXXXXXXXXX utilise la même politique pour ses fins personnelles

14 July 2000 External T.I. 1999-0010505 - Immigration S128.1

Unedited CRA Tags
128.1

Principal Issues: What are the Canadian income tax implications to an immigrating individual as a consequence of the individual owning stock options granted by a foreign corporation (and employer) under paragraph 128.1(1)(b) of the Act.

Position: No deemed disposition/re-acquisition under paragraph 128.1(1)(b) on immigration.

Reasons: The law.

13 July 2000 External T.I. 2000-0021745 - EMPLOYER PAID EDUCATIONAL COSTS

Unedited CRA Tags
6(1)a)

Principal Issues: Would tuition fees paid for by an employer be considered non-taxable based on the Department's position as described in Technical News #13?

Position: Yes.

Reasons: The program of study meets the conditions of "Specific Employer-Related Training" per Technical News #13.

11 July 2000 External T.I. 1999-0012395 - farm pro. ... encumbered by mortgage charge

Unedited CRA Tags
70(9)

Principal Issues: Does farm property vest indefeasibly with the beneficiary if it is received subject to a mortgage or charge, the amount of which is described in the will by formula rather than as a fixed amount?

Position: yes

Reasons: The manner in which the amount of the mortgage or charge is determined does not affect the position set out in paragraph 3(d) of IT-349R3 and 8(e) of IT-449R.

6 July 2000 External T.I. 2000-0019655 - STANDBY CHARGE - TAKING AUTO HOME

Unedited CRA Tags
6(1)e) 6(1)k) 6(2)

Principal Issues:

16 September 1999 External T.I. 9915745 - RRSP/RRIF SWAP

Unedited CRA Tags
146 146.3

Principal Issues: Whether a swap of securities between RRSP/RRIF and non-registered accounts is treated as a purchase and sale

Position: Question of fact

Reasons: Depends on intention of parties and whether equivalent consideration passes between parties.

23 September 1998 External T.I. 9800555 F - FIDUCIE SUCCESSIVE - FIDUCIE TESTAMENTAIRE

Unedited CRA Tags
108(1) 248(9.1)

Principales Questions:

Est-ce qu'une fiducie visée par le paragraphe 248(9.1) de la Loi serait considérée comme étant une «fiducie testamentaire» au sens du paragraphe 108(1) de la Loi même si elle n'avait pas commencé à exister au décès d'un particulier?

Position Adoptée:

3 February 1997 External T.I. 9701825 - STATUS OF GMBH & CO KG

Principal Issues: Whether a GmbH & C0 KG is a corporation or a partnership for purposes of the Act. This entity is a hybrid German entity combining both a GmbH and a KG.

Position: Most likely would be considered as a partnership

Reasons: Ken Major spoke to XXXXXXXXXX and said that it would appear (based on Megatext search) that we would treat such entities as partnerships. Having said this, it would appear from the correspondence examined that we had not actually made a determination as to whether or not such entities were partnerships or corporations but rather for the purpose of the correspondence examined the entities had been accepted as being partnerships. If a more definitive answer was required XXXXXXXXXX would have to send in more information. XXXXXXXXXX wrote back indicating that our informal opinion was sufficient for now and to close the file. No written response issued.

Technical Interpretation - Internal

19 July 2000 Internal T.I. 2000-0034627 - MEDICAL EXPENSES

Unedited CRA Tags
110.2(2)m) REG. 5700

Principal Issues: Medical expense - cost of a computer where it is used in conjunction with a device (an optical scanner) described in Regulation 5700(l)

Position: The Computer is not an eligible medical expense

Reasons: Regulation 5700(o) clearly distinguishes the computer from the devices or equipment designed exclusively to help a blind individual operate a computer - It follows that a computer is not described in Regulation 5700(l)

19 July 2000 Internal T.I. 2000-0026417 - MANDATORY INVENTORY ADJUSTMENT

Unedited CRA Tags
28(1.2)

Principal Issues: Are cattle, pigs, bison, elk, or alpaca "specified animals" for the purposes of subsection 28(1.2) of the Act?

Position: Bison and cattle - yes, the other animals are not specified animals.

Reasons: Other than bison, the animals are not considered to be bovine animals (i.e., members of the Bovinae subfamily). The issue was carefully considered in 981782.

17 July 2000 Internal T.I. 2000-0012557 - 75(20 on transfer of shares to trust...

Unedited CRA Tags
75(2)

Principal Issues:
1. Does 75(2)(a)(i) apply to dividends on shares transferred to trust from beneficiary in exchange for a non-interest bearing demand note with no scheduled terms of repayment?
2. Does 152(4)(b)(iii) apply to extend the reassessment period?

Position:
1. yes 2. yes

Reasons:
1. The shares held by trust may revert to the transferor either by reason of being a beneficiary.
2. The circumstances under which the shares were transferred to the offshore trust is indicative of a non-arm's length relationship with the trustee and the attribution under 75(2) is directly linked to the transfer which is the transaction with the non-arm's length non-resident trustee

17 July 2000 Internal T.I. 2000-0032307 - HEALTH CARE PREMIUMS CASH EQUIVALENT

Unedited CRA Tags
6(3)

Principal Issues: A company pays the premiums for provincial health care for its retired employees who reside in a particular province. Will a cash equivalent amount equal to the premiums paid for a retiree resident in the province which is paid to out-of-province or out-of-country retirees be taxable?

Position: Yes.

Reasons: The cash equivalents should be treated the same as the premiums paid for retirees resident in the province.

12 July 2000 Internal T.I. 2000-0024537 - INDIAN TAXATION - EMPLOYMENT INCOME

Unedited CRA Tags
81(1)a)

Principal Issues: 1. Is the employment income of an Indian exempt from taxation. 2. Are bonuses received by an Indian employee exempt from taxation. 3. How is the reasonableness of the bonuses determined when the corporation has investment income and business income.

Position: 1. Cannot determine. 2. Yes. Once the bonus is found to be reasonable, it forms part of employment income. 3. Question of fact.

Reasons: 1. Guideline 2 applies if the employee lives on reserve and the corporation is resident on reserve. If the employee lives off reserve and no other guideline applies, the proration rule applies to exempt the employment income earned on reserve. The employee has two residences and it is a question of fact if he has a principal residence on reserve and lives there. 2. Bonuses are included in employment income and are exempt if one of the guidelines are met. 3. There are no specific guidelines in determining the reasonableness of bonuses. The fact s of each particular case should be examined. Question 42 of the 1981 Round Table Conference Table suggested comparisons with like services performed in the same or similar businesses of the duties performed by the employee and the time expended in carrying out these duties, the remuneration of other employees of the same business who have similar types of responsibilities, experience, and skills, the remuneration paid by other businesses of a similar size to employees who render services corresponding to those of the employee concerned."

10 July 2000 Internal T.I. 2000-0022027 F - OBLIGATION LÉGALE DE PAYER UNE DÉPENSE

Unedited CRA Tags
18(1)a) 18(1)e) 9(1) 12(1)b)

Principales Questions:
Est-ce qu'on peut considérer que le payeur a l'obligation légale de payer un montant au moment où une entente a été signée si l'entente prévoit la date des paiements mais que le montant des paiements sera déterminé selon un pourcentage des revenus d'exploitation du payeur et qu'aucun délai pour le paiement complet de la dette n'a été fixé ?

Position Adoptée:
Commentaires généraux seulement puisqu'il s'agit d'une question de fait et que les faits ne sont pas tous disponibles à ce moment.

10 July 2000 Internal T.I. 2000-0027057 - XXXXXXXXXX

Unedited CRA Tags
118.1 110.1

Principal Issues: The church is proposing to incorporate a wholly-owned taxable subsidiary to which it will transfer, at FMV, real estate for debt. The subsidiary will develop the real estate and rent it for profit. The subsidiary plans to make the maximum charitable donation each year to the church that would qualify for a tax deduction (which it expects would be 75% of its income) and return any excess profit as dividends. The charity will fund the subsidiary on a go-forward basis by making loans to the subsidiary. The church wishes confirmation that the subsidiary will be able to deduct its interest payments to the church in computing its income, that it may claim the charitable tax deduction each year for its maximum donation and that there will be no tax consequences to the church from the proposed transaction.

Position: It is not possible to give the requested comfort.

Reasons: First, confirmation of tax implications can only be made in the context of an advance tax rulings. Second, it is possible that subsections 110.1(6) and 118.1(16) would apply to reduce or eliminate any deduction claimed by the subsidiary in respect of funds periodically donated. Third, it is unclear whether interest would be deductible to the subsidiary under these circumstances. Fourth, it is not clear that it is appropriate for the church to fund the subsidiary in view of its status as a charitable organization.

6 July 2000 Internal T.I. 2000-0026427 - DIVORCE; ASSIGNMENT OF PENSION

Unedited CRA Tags
56(1)a) 56(2)

Principal Issues:

5 July 2000 Internal T.I. 2000-0025487 F - PENSION ALIMENTAIRE

Unedited CRA Tags
56.1(3) 60.1(3)

Principales Questions: Est-ce qu'une confirmation écrite où une ex-conjointe reconnaît avoir reçu des paiements de XXXXXXXXXX $ par mois est un accord écrit pour l'application des paragraphes 56.2(3) et 60.1(3) de la Loi ?

Position Adoptée: Non

5 July 2000 Internal T.I. 2000-0005677 - SALE OF CATTLE AT AUCTION

Unedited CRA Tags
28(1)

Principal Issues: Sale of livestock at auction. Time when farmer includes sale in income.

Position: The farmer must include the sale in income when the purchaser pays the dealer, and if the purchaser pays the dealer by postdated cheque, it is included in income on the date of that cheque, unless the dealer pays the seller at an earlier date.

Reasons: This has been our position since 1993. The dealer is an agent of the seller and is authorized to receive the funds on behalf of the seller. In some provinces, the dealer may also be deemed to hold the funds in trust for the seller.

5 July 2000 Internal T.I. 2000-0024977 F - PENSION ALIMENTAIRE- DATE D'EXECUTION

Unedited CRA Tags
56.1(4)

Principales Questions:
Est-ce qu'une ordonnance rendue après avril 1997 a une date d'exécution au sens du paragraphe 56.1(4) LIR? Sinon, est-ce que le montant de la pension alimentaire pour enfants a été modifié par l'ordonnance?

Position Adoptée:
Oui, l'ordonnance a une date d'exécution au sens du paragraphe 56.1(4) LIR. Il n'est pas nécessaire d'examiner si le montant de la pension alimentaire pour enfants a été modifié par l'ordonnance.

4 July 2000 Internal T.I. 2000-0022097 F - Allocation de retraite - Nature du versement

Unedited CRA Tags
147.2(4)(a) 60(j.1) 60(n)(i.1)

Position Adoptée: Oui, selon les circonstances

4 July 2000 Internal T.I. 2000-0024257 - Eligible Capital Property Non-arm's length

Unedited CRA Tags
14(3) 14(1) 20(1)(b)

Principal Issues: Application of subsection 14(3) in the case of disposition of a number of units of chicken quota.

Position: Apply 14(3) to property on a pro-rata basis.

Reasons: Partial disposition of property.

4 July 2000 Internal T.I. 2000-0031927 - request to change a fiscal period of a MFT

Unedited CRA Tags
132.11(1)

Principal Issues: Whether 132.11(1)(c) prevents a mutual fund trust that has made an election under that provision from reverting to a December 31 fiscal period and taxation year

Position: yes

Reasons: 132.11(1)(c) is structured so that the fiscal period of a mutual fund trust that has made an election is matched to its taxation year which is fixed by 132.11(1)(a) and (b). As there is no provision for cancelling the election, the election remains in force.

27 June 2000 Internal T.I. 2000-0014717 - EMPLOYEE V. INDEPENDENT CONTRACTOR

Unedited CRA Tags
5(1) 9(1)

Principal Issues: We have been asked by GST Rulings whether an individual occupies an "office" (as defined in subsection 248(1) of the Income Tax Act) where the individual is part of a quasi-judicial administrative board, or tribunal.

Position: We would generally expect that the individual would occupy an office.

Reasons: The nature of the activities suggest that an employee/employer relationship would exist. In marginal cases, the approach set out in the pamphlet "Employee or Self-Employed" could be followed and our CPP/EI Eligibility Division could be consulted.

26 June 2000 Internal T.I. 2000-0010747 - LOSS APPLICATION & RESCINDMENT

Unedited CRA Tags
152(6) 165(1.1) 152(4.2) 153(3.1)

Principal Issues:
Can a corporate tax payer object to a reassessment after the normal reassessment period has expired? The request involves a loss application and loss rescindment?

23 June 2000 Internal T.I. 2000-0029407 - WITHHOLDING ON EARLY WITHDRAWAL FROM LIRA

Unedited CRA Tags
REG 103(4)

Principal Issues: Whether the withholding tax on an early withdrawal from a locked-in retirement account as approved by the Financial Services Commission of Ontario must be calculated on 1) the aggregate of the approved distributions, namely the "Specified Amount" and the Fee payable to the commission in respect of the application for permission to make an early withdrawal or, 2) can the appropriate rate of withholding tax be determined by the quantum of the Specified Amount and the Fee as two separate calculations?

Position: The rate of withholding tax must be calculated by reference to the total of all amounts approved for early distribution.

Reasons: The approval granted by the Ontario Financial Services Commission is for one distribution in respect of the particular application - subject to concurrence by Trust Accounts Division which has responsibility for the administration of the withholding or source deduction provisions of the Act.

13 June 2000 Internal T.I. 2000-0009457 - INDIAN BUSINESS AND EMPLOYMENT INCOME

Unedited CRA Tags
81(1)(a)

Principal Issues:
1. whether subsection 90(1) of the Indian Act applies.
2. whether business income of a status Indian is tax exempt
3. whether employment income of status Indian employees is tax exempt.

Position:
1. Cannot conclude that it is applicable
2. No
3. Maybe

Reasons:
1. Documentation provided not sufficient to conclude that the income the client receives for operating XXXXXXXXXX would be considered purchased by Her Majesty or given to Indians under a treaty agreement.
2. Location of revenue generating activities of client business carried on off reserve.
3. Guideline 2 applicable if employer meets definition of "employer is resident on a reserve" and employees are status Indians living on a reserve.

30 May 2000 Internal T.I. 2000-0007187 - Reg. 400(2) - Fixed Place of Business

Unedited CRA Tags
reg. 400(2)

Principal Issues: In the definition of "permanent establishment" in paragraph 400(2)(a) of the Income Tax Regulations, do the words " a fixed place of business" mean a fixed place of business in Canada?

Position: No

Reasons: The definition of "permanent establishment" in subsection 400(2) of the Income Tax Regulations deals with permanent establishments both in and outside Canada. Therefore, unless it is otherwise clearly stated, the phrase "a fixed place of business" does not refer only to a fixed place of business in Canada.

28 May 2000 Internal T.I. 2000-0025807 - INDIAN BANDS AS PUBLIC BODIES

Unedited CRA Tags
81(1)a)

Principal Issues: General comments on whether Indians Bands can be considered public bodies performing a function of government.

Position:

Reasons:

12 May 2000 Internal T.I. 2000-0001737 - EXPENSES OF REPRESENTATION

Unedited CRA Tags
20(1)(cc)
OMB represenations by farming businesses included

Principal Issues: Are legal costs incurred in connection with an Ontario Municipal Board hearing regarding the rezoning of farm property from rural to agricultural status deductible under 20(1)(cc)?

Position: Yes.

Reasons: The legal fees meet the conditions in 20(1)(cc) and the Ontario Municipal Board is a public body performing a function of government in Canada.

8 May 2000 Internal T.I. 2000-0013797 - RETIRING ALLOWANCE AFTER REEMPLOYMENT

Unedited CRA Tags
248(1) 60(j.1)

Principal Issues: Will a severance amount payable to a retired provincial civil service employee be a "retiring allowance" if the retired employee accepts part-time employment with another Ministry of the provincial government before receiving the severance payment?

Position: Yes.

Reasons: Restricted to this particular taxpayer. Similar situations to be considered on a case by case basis. IT-337R3 par. 3(b) is to be revised to reflect this new position and this is to be announced in Income Tax Technical News.

7 April 2000 Internal T.I. 1999-0002167 - MUNICIPAL CORPORATIONS - INDIANS

Unedited CRA Tags
149(1)(d.5)

Principal Issues: Layman's overview of the rules for Indian Bands (that are municipalities) owning entities:149(1)(d.3) to (d.6), 149(1.1) to (1.3), 149(10).

Position: N/A

Reasons: N/A

Ministerial Letter

15 May 2000 Ministerial Letter 2000-0020498 - FARM LOSSES-HORSE RACING

Unedited CRA Tags
31

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

May 15, 2000

XXXXXXXXXX

Dear XXXXXXXXXX:

The Honourable Martin Cauchon, Minister of National Revenue, has asked me to reply to your correspondence of February 11, 2000, addressed to

20 April 2000 Ministerial Letter 1999-0002168 - INDIAN OWNED CORPORATIONS

Unedited CRA Tags
149(1)(d.5) 149(1)(c) 149(1)(d.6) 149(1.2)

Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.

Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.

April 20, 2000

XXXXXXXXXX

Dear XXXXXXXXXX:

At the suggestion of the Assembly of First Nations, I wish to alert you to a recent change in the Income Tax Act that may affect corporations and other entities owned by First Nations. A summary of the change is attached.