News of Note
Leekes Ltd. – Court of Appeal of England and Wales finds that the ability of successor to apply predecessor losses to income from the same trade did not extend to profits from an enlarged trade
Email this ContentA British taxpayer (Leekes) carrying on a retail trade through four stores acquired, for nominal consideration, all the shares of another company (Coles) carrying on a similar retail trade through three stores, and then effectively wound-up Coles so as to carry on the operations of the three former Coles’ stores directly. At issue was whether a provision - which provided that Leekes (viewed as the successor to the Coles’ trade) could deduct any amount for which the predecessor (Coles) would have been entitled to relief if it had continued to carry on the trade - permitted Leekes to deduct its losses from continuing to carry on the three former Coles’ stores from its profits from operating its four “old” stores.
In finding that such relief was unavailable, Henderson LJ stated:
[T]he words "the trade" can only refer to the trade previously carried on by Coles. They cannot refer to the enlarged trade carried on by Leekes, because that trade had never been carried on by Coles, and Coles cannot therefore be deemed to have continued to carry it on. … [I]t is necessary to ascribe a deemed continuity to the former trade of Coles, although it now forms part of the merged business carried on by Leekes, and relief may only be obtained if and to the extent that Leekes then derives trading income from the former Coles trade.
ITA s. 111(5)(a)(ii) provides a somewhat generous test for carrying forward losses from a streamed business and deducting them from profits from a similar business as described in s. 111(5)(a)(II)(B). In most circumstances, an expanded business would qualify as a similar business, so that it would be unnecessary to address any relevance of the distinction drawn in the above case between the core of the business that is a continuation of that which was previously carried on, and the expanded component of that business (that had been a separate person's business).
Neal Armstrong. Summary of Leekes Ltd v HM Revenue & Customs, [2018] EWCA Civ 1185 under s. 111(5)(a)(ii).
Income Tax Severed Letters 18 July 2018
This morning's release of three severed letters from the Income Tax Rulings Directorate is now available for your viewing.
Patterson Dental – Tax Court of Canada finds that a zero-rating for epinephrine did not include a drug containing epinephrine
The taxpayer did not charge GST on its sales of anesthetic solutions containing epinephrine to dentists on the basis that it was making a supply of a drug that was “epinephrine.” However, the epinephrine had no anesthetic effect and instead acted as a vasopressor to prolong the duration of the local anesthetic.
Favreau J found that the zero-rating in Sched. VI, Pt. I, s. 2(e) was not available in part based on a distinction drawn by him between “drugs which have epinephrine as their sole active ingredient” and “those that have epinephrine combined with another active ingredient, such as the anesthetics in issue.” He also was influenced by Finance’s Technical Notes, which indicated that the drugs intended to be covered by s. 2(e) were “designed to serve as an emergency relief for patients suffering from major death threatening conditions.”
Neal Armstrong. Summary of Patterson Dental Canada Inc. v. The Queen, 2018 TCC 131 under ETA Sched. VI, Pt. I, s. 2(e).
J.B. – Court of Quebec finds that an unsigned layperson’s agreement qualified as a written separation agreement
Dortélus J found that a separation agreement drafted by the taxpayer’s husband in mangled English and which she did not sign nonetheless qualified as a “written separation agreement” for purposes of the Quebec equivalent of s. 160(4) given that she agreed with its basic terms and he thereafter complied with their agreement that he would transfer a ½ interest in some real estate to her in satisfaction of her claims for support. The husband also was found to be living “separate and apart” from her at the time, as also required by s. 160(4), even though he was spending some time in her basement to help ease the shock of the transition with their children.
Consequently, his tax debt did not flow through to her as the transferred property was deemed to have a nil value.
Neal Armstrong. Summary of J.B. v. Agence du revenu du Québec, 2018 QCCQ 4200 under s. 160(4).
Rocco Gagliese Productions – Tax Court of Canada finds that royalties generated by a CCPC from writing TV-episode music were active business income
A company which earned royalties from the daily activities of its sole shareholder and employee in writing and producing music for TV episodes was found to be earning income from an active business and not earning income from a specified investment business. D’Arcy J stated:
The principal purpose of the Appellant’s business was to earn income from Mr. Gagliese’s daily activities of originating and recording music tracks for individual television episodes. As Mr. Gagliese testified, if you take away his daily writing activities, the Appellant earned little or no income.
Neal Armstrong. Summaries of Rocco Gagliese Productions Inc. v. The Queen, 2018 TCC 136 under s. 125(7) – specified investment business, and s. 129(4) – income or loss - para. (b).
Aitchison Professional Corporation – Tax Court of Canada finds that s. 160 does not catch the transfer of valuable services to a non-arm’s length person
At a time that a lawyer (“James”) owed $2.1 million in taxes, he transferred his law practice to a professional corporation and thereafter worked for it as an unpaid volunteer or employee. His two daughters (also lawyers) worked for the corporation at market salaries and in the first three years received over $1 million in dividends as a result of “an improbable share structure and a complete disregard for dividend rights.”
In finding that James had not transferred “property” to the corporation for s. 160 purposes by virtue of choosing not to negotiate a salary for his valuable professional services, Graham J stated:
The right to negotiate is a right that everyone possesses and that is enforceable against no one. It is not “property”. If an employee negotiates a poor contract, the potential salary that he or she leaves on the table is not “property” that he or she has transferred to his or her employer. It is simply a lost opportunity.
He added:
This case demonstrates that there is clearly a gap in section 160 … [but s]imply amending section 160 to cause it to cover the non-arm’s length provision of services may have undesired consequences. …
If a tax debtor spent all of his or her free time caring for his or her aging parents, would the Minister assess the parents for the fair market value of that care?
Neal Armstrong. Summary of Aitchison Professional Corporation v. The Queen, 2018 TCC 131 under s. 160(1).
Six further full-text translations of CRA interpretations are available
The table below provides descriptors and links for six Interpretation released in June 2013, as fully translated by us.
These (and the other full-text translations covering all French-language Interpretations released in the last 5 years by the Income Tax Rulings Directorate) are subject to the usual (3 working weeks per month) paywall.
There may be a wide range of a reasonable FMVs for management fees respecting a GST/HST self-assessment under ETA s. 272.1(8)
The new rules for investment limited partnerships require the general partner to self-assess based on the fair market value of the periodic management or administrative services that are supplied by it under an agreement for the particular supply of those services to the ILP. If the general partner went to the effort and expense to commission a transfer-pricing type study as to the FMV of its services:
[The] transfer pricing-like study would often generate a range of acceptable arm’s length prices for particular management and administrative services. Would the general partner then be entitled to self-assess any amount of tax within the appropriate range?
See also Henco (“A range of value makes eminent sense. And, where a taxpayer has designated a value that ultimately is found to fall within the range of reasonable fair market value, I see no reason to disturb that figure.”)
Neal Armstrong. Summaries of Alan Kenigsberg, “Changes to Tax Treatment of ILPs under the ETA,” Sales Tax, Customs & Trade, Volume XV, No 2, Federated Press, 2018, p.9 under ETA s. 123(1) - investment limited partnership, s. 217.1(1) and s. 272.1(8).
Sterritt – Tax Court of Canada states that the Ontario Superior Court of Justice or the Federal Court, not it, had the jurisdiction to order a refund
Russell J stated that he lacked jurisdiction to order CRA to pay a refund to the taxpayer:
[S]eeking that the Minister be ordered to issue the refund is not an aspect of deciding if an assessment or reassessment or a notice of loss determination is right or wrong. Thus it is not within the jurisdiction of this Court. It likely is within the jurisdiction of Ontario’s Superior Court of Justice as the Appellant resides in Ontario and as well within the jurisdiction of the Federal Court.
Neal Armstrong. Summary of Sterritt v. The Queen, 2018 TCC 117 under s. 171(1).
Heath – Tax Court of Canada finds that a notice of discontinuance could not be reversed even with Crown consent
The unrepresented taxpayer file a notice of discontinuance for her appeal of the denial of the new housing rebate after being advised by Crown counsel that her appeal was unlikely to succeed – but a day later, was informed by Crown counsel that she would be allowed the rebate. However, the Registrar refused to accept the parties’ joint consent to judgment to this effect on the basis that a notice of discontinuance had already been filed.
Smith J agreed with the Registrar, noting that Scarola, 2003 FCA 157 had established “that a discontinuance under subsection 16.2(2) [of the Tax Court of Canada Act] ‘produces the same effect as a judgment of dismissal by the Court’.”
He went on to note that CRA still appeared to have the ability to exercise its discretion to reassess to allow the rebate.
Neal Armstrong. Summaries of Heath v. The Queen, 2018 TCC 119 under Tax Court of Canada Act, s. 16.2(2) and ETA s. 298(2).