News of Note

Nicoll – Tax Court of Canada finds that a “streamlined” system for handling travel allowances had the effect of making them taxable

The collective agreement between a boilermakers union and a group of employers was amended to provide a “streamlined” system that eliminated the need for receipts for travel allowances paid to the employees: they were paid a straight sum based on the distance between a standardized central point (Burnaby City Hall) and the job site, irrespective of the actual starting location of the employee or of the employers’ premises.

Wong J found that this change had the effect of making the travel allowances fully taxable pursuant to s. 6(1)(b)(vii) or ss. 6(1)(b)(vii.1) and (x). Furthermore, although the employees could still claim their actual travel expenses pursuant to s. 8(1)(h) and (h.1), they had no receipts. Their allowances were fully taxable with no offsetting deductions.

Neal Armstrong. Summaries of Nicoll v. The King, 2023 TCC 116 under s. 6(1)(b)(vii) and s. 6(1)(vii.1).

We have translated 7 more CRA interpretations

We have translated 7 further CRA interpretations released in February and January of 2003. Their descriptors and links appear below.

These are additions to our set of 2,565 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 20 ½ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).

Bundle Date Translated severed letter Summaries under Summary descriptor
2003-02-07 5 February 2003 External T.I. 2002-0157445 F - AAPE ACTION ADM PETITE ENTREPRISE Income Tax Act - 101-110 - Section 110.6 - Subsection 110.6(1) - Qualified Small Business Corporation Share - Paragraph (c) question of fact whether shares of stock-trading corporation were QSBCs
Income Tax Act - Section 248 - Subsection 248(1) - Small Business Corporation CCRA articulation of Ensite test in relation to stock-trading business
31 January 2003 External T.I. 2002-0161555 F - VENTE D'UN IMMEUBLE LOCATIF Income Tax Act - Section 40 - Subsection 40(1) - Paragraph 40(1)(a) - Subparagraph 40(1)(a)(i) payment made by vendor to purchaser of building reduced its proceeds of disposition
3 February 2003 Internal T.I. 2002-0168317 F - PAIEMENT DE DEPENSES Income Tax Act - Section 56.1 - Subsection 56.1(4) - Support Amount amount recipient does not qualify as having discretion as to use if a court order specifies the expenses that are covered
Income Tax Act - Section 56.1 - Subsection 56.1(2) express mention of ss. 56.1(2) and 60.1(2) no longer required
2003-01-24 21 January 2003 External T.I. 2001-0109445 F - Usufruit-droit privé français-nu-prop. Cdn.
recap and follow-up in 2003-0002465 F

Income Tax Act - Section 70 - Subsection 70(5) when usufruct created by will, legatee of bare ownership acquired it at FMV of bare ownership
Income Tax Regulations - Regulation 1102 - Subsection 1102(1) - Paragraph 1102(1)(c) bare owner of rental property not entitled to claim CCA
10 November 2002 External T.I. 2002-0156845 F - CONGRE 2002 APFF Income Tax Act - Section 7 - Subsection 7(1.1) realization of s. 7(1.1) gain on shares’ disposition even though they had lost most of their value
13 January 2003 External T.I. 2002-0176905 F - CPCC Status Income Tax Act - Section 125 - Subsection 125(7) - Canadian-Controlled Private Corporation - Paragraph (b) test of majority-ownership of voting shares
27 January 2003 Internal T.I. 2002-0177197 F - ATTRIBUTION DU GAIN A UN CONJOINT SEPARE Income Tax Act - Section 56.1 - Subsection 56.1(4) - Support Amount net rental income on property received by separated spouse to fund support was rental income, not a support amount
Income Tax Act - Section 74.5 - Subsection 74.5(3) - Paragraph 74.5(3)(b) application of s. 74.5(3)(b) re properties divided between the separated spouses and sold before divorce

The Joint Committee recommends that the Act be amended to exclude unconditionally repayable loans from "government assistance"

CAE indicated that a government loan lacking sufficient "ordinary commercial terms" – including one that was made otherwise than to promote the governmental commercial interests or that has a below-market interest rate – will be considered "government assistance" within the meaning of ss. 12(1)(x) and 127(9).

As an example of an implication, the mandates of each of the Business Development Bank of Canada, Canada Infrastructure Bank, Export Development Canada, and Farm Credit Canada include providing loan financing to projects which are desirable for socio-political reasons and which may not have fully commercial terms – thereby resulting in such loans being treated as government assistance so as to cause such projects to not be economically viable due to the increased tax burden.

The Joint Committee recommends an amendment to exclude unconditionally repayable loans from "government assistance" for s. 12(1)(x) and 127(9) purposes and that Finance issue a comfort letter.

Neal Armstrong. Summary of Joint Committee, "Impact of CAE case", 11 August 2023 Submission of the Joint Committee under s. 127(9) – government assistance.

Vancouver’s additional 2.5% hotel tax will increase the overall rate to above the 12% specified tax rate, thereby causing GST to be applied to the 13.5% provincial tax

Effective February 1, 2023, Vancouver has been imposing the Major Events Municipal and Regional District Tax (Major Events MRDT) of 2.5% to supplies of short-term accommodation made in the City. When combined with the regular 8% provincial sales tax (PST) and the 3% Vancouver Municipal and Regional District Tax (MRDT), this increases the combined rate to 13.5%, which is above the “specified tax rate” of 12% that applies for purposes of ETA s. 154. The significance of this is that GST applies to all of such provincial tax so that the combined tax rate increased to over 19%.

CRA has also belatedly announced the cancellation of Policy Statement P-194R2, Application of Penalties and Interest when a Return and/or Rebate Application, and/or Another Return, is Received After the Due Date in recognition of the Villa Ste-Rose decision (which found that interest and penalties on a late-filed GST return should be computed after netting rebate claims against the gross GST payable).

Neal Armstrong. Summaries of Excise and GST/HST News - No. 114, August 2023 under ETA s. 154 and s. 280(1).

Preston – Federal Court of Appeal finds that assumptions of mixed fact and law were not prejudicial to the taxpayer – and that an FMV assumption instead is factual

The Tax Court ordered that “assumptions of fact” pleaded by the Crown in its Reply should be struck out and moved to the reasons part of the Reply on the sole ground that they were in fact conclusions of mixed fact and law. Before finding that these Crown pleadings could stand as they were, Monaghan JA found that this “sole ground” approach was contrary to Rule 53(1)(a), which required a determination as to whether the pleaded assumptions were prejudicial or would delay the fair hearing of the appeal or whether leaving them as is would better serve the trial process.

In particular, there was “no principle of law that a statement of mixed fact and law cannot stand as an assumption” and, indeed, such an assumption created no additional onus on the taxpayer (and, thus, no inherent prejudice) since the legal component was a matter for the court to decide rather than creating any onus on the taxpayer. Conversely, there was no prejudice to the taxpayer if it could discern the factual case that it needed to make out.

One of the assumptions at issue was that the fair market value of the shares and partnership interest received by two beneficiaries of the appellant trust were specified dollar amounts. In this regard, Monaghan JA indicated:

A statement that an identified property has a particular fair market value at a particular point in time is an assumption (or finding) of fact, notwithstanding that fair market value has a legal definition.

Neal Armstrong. Summary of Canada v. Preston, 2023 FCA 178 under Rule 53(1)(a).

Income Tax Severed Letters 23 August 2023

This morning's release of four severed letters from the Income Tax Rulings Directorate is now available for your viewing.

Independent Order of Foresters – Tax Court of Canada finds that Foresters could reduce its taxable life insurance income by allocating assets to an exempt insurance business

The taxpayer was a Canadian resident fraternal benefit society and a life insurer providing accident and sickness (“A&S”) benefits, and individual life insurance to its members. Ss. 149(1)(k) and (3) exempted it regarding its taxable income other than from carrying on its life insurance business, and s. 149(4) provided that its taxable income from carrying on a life insurance business was to be computed “on the assumption that it had no income or loss from any other source.”

The taxpayer included the assets and liabilities of its A&S business (viewed as an insurance business other than a life insurance business) in determining its Canadian investment fund (“CIF”) (i.e., the notional fund used as part of the basis for determining how much of its investment income should be allocated to its two Canadian insurance businesses). Furthermore, it made designations under Reg. 2401(2) of a portion of its investment property (and, therefore, the investment income therefrom) to be in respect of its A&S business and, most jarringly to CRA, made a designation under Reg. 2401(2)(d) that investment properties with a $200 million value, which were not specifically required by the balance of Reg. 2401(2) to be allocated to its two insurance business, were to be allocated to its (exempt) A&S business.

Biringer J found that, consistent with its text, s. 149(4) did not go so far as to effectively deem the taxpayer not to have the A&S business, and instead, in effect only exempted the taxpayer from taxation respecting the A&S business. Furthermore, s. 138(2) effectively provided that the specific income-computation rules for life insurers, including the CIF-related computation rules, had paramountcy.

Among other things, this meant that, as the A&S business existed for Reg. 2401(2) purposes, the taxpayer indeed could designate the $200 million of income-producing assets to the insurance business (here, the A&S business) that happened to be exempted from tax.

The “World Surplus Assets” of the taxpayer were investment assets that were determined to be in excess of that needed for its life insurance divisions to have capital that was a comfortable multiple (around 3.1 X) of the minimum needed to be able to satisfy any claims that might be made against them. A further issue was whether the taxpayer was required to include these assets in computing its CIF, which turned on whether they were “used or held in the course of carrying on an insurance business” as per the CIF definition.

Biringer J accepted the testimony of the taxpayer’s expert that indeed the World Surplus Assets represented assets that were in excess of those required to maintain the required margin of safety, so that, under the Ensite test, such assets were not required to be held in the life insurance business to avoid its destabilization. Furthermore, as a factual matter, the World Surplus Assets (which were managed in a separate fund) were not used or held in the life insurance business subject to some exceptions, e.g., where such assets were used at any time in the year to top-up the capital of any life insurance division.

Neal Armstrong. Summaries of The Independent Order of Foresters v. The King, 2023 TCC 123 under Reg. 2401(2)(d) and Reg. 2400(1) – Canadian investment fund – (a)(ii)(B).

Gaudreau – Tax Court of Canada requires the production by a vendor of the tax-planning memo of the purchaser’s accountant

The taxpayer was assessed under s. 84(2) regarding his sale of his interest in an insurance company that was structured as a hybrid sale transaction. The taxpayer took the position that he was not required to produce on discovery a six-page memo that had been prepared by the accounting firm for the purchaser and which had been shared with him (as vendor) and his advisors, on the grounds that it contained nothing but a description of transactions of which the Minister was already aware and matters of “subjective opinion” and that it contained no mention of or discussion of s. 84(2).

After noting the absence of accountant-client privilege, St-Hillaire J found that the memo was potentially relevant and should be produced, indicating in this regard that it had been used as the planning memo and that “the preferred approach to the interpretation of subsection 84(2) involves an examination of the circumstances surrounding the transactions in question.”

Neal Armstrong. Summary of Gaudreau v. The King, 2023 CCI 115 under Rule 82(1) and General Concepts – Solicitor-client privilege.

We have translated 6 more CRA interpretations

We have translated 6 translations of CRA interpretations released in February of 2003. Their descriptors and links appear below.

These are additions to our set of 2,558 full-text translations of French-language Technical Interpretation and Roundtable items (plus some ruling letters) of the Income Tax Rulings Directorate, which covers all of the last 20 ½ years of releases of such items by the Directorate. These translations are subject to our paywall (applicable after the 5th of each month).

Bundle Date Translated severed letter Summaries under Summary descriptor
2003-02-21 19 February 2003 Internal T.I. 2002-0169967 F - ARREARAGES-PENSION ALIMENTAIRE Income Tax Act - Section 56.1 - Subsection 56.1(4) - Support Amount settlement payment of past and future support payments was not a support amount
2003-02-14 11 December 2002 External T.I. 2002-0146465 F - Article XVI Canada-E.U. Treaties - Income Tax Conventions - Article 16 income earned by S Corp. of US athlete was taxable under Art. 16
28 January 2003 External T.I. 2002-0147405 F - Crédit d'impôt pour emploi à l'étranger Income Tax Act - Section 122.3 - Subsection 122.3(1) leave periods in Canada count towards the period of 6 months’ employment under foreign project if not terminated before leave commences
Income Tax Act - Section 115 - Subsection 115(1) - Paragraph 115(1)(a) - Subparagraph 115(1)(a)(i) leave period in Canada counted towards the 6-month period required under s. 122.3(1) of employment on performing services on foreign project
30 January 2003 Internal T.I. 2002-0157307 F - Article 86.1 et fractions d'action Income Tax Act - Section 86.1 - Subsection 86.1(2) - Paragraph 86.1(2)(b) distribution of fractional shares and their immediate cash sale complied with s. 86.1(2)(b)
27 January 2003 External T.I. 2002-0169385 F - Un serveur et l'établissement stable Treaties - Income Tax Conventions - Article 5 Canadian servers of Swiss company would not be a PE if sales of its product not made through the website
28 January 2003 Internal T.I. 2002-0175927 F - Choix de 107(2.001) Income Tax Act - 101-110 - Section 107 - Subsection 107(2.001) the election, which is unlike the designation in Lussier, cannot be made late

632738 Alberta – Tax Court of Canada confirms the refusal of a company to not disclose its reasons for engaging in transactions on grounds of privilege

The taxpayer was assessed under s. 103(1). The individual wholly-owning it refused to answer questions posed on his examination for discovery, that were aimed at eliciting the reason for which various transactions were engaged in by the taxpayer and other group companies, on the grounds that he and the taxpayer did not have any information pertaining to those questions that could be provided without disclosing information that was protected by solicitor-client privilege.

Sommerfeldt J found, in the context of a Crown motion brought for an order for the individual to answer the questions, that the taxpayer had not impliedly waived solicitor-client privilege by disputing the s. 103(1) assessment (which put in issue its principal reason for the transactions) given that in its pleadings and on discovery it had not relied on legal advice as part of its position. He then stated:

Although I will not issue an order that would require the Appellant, in response to any of the Disputed Questions, to disclose information that is subject to solicitor-client privilege, I will note that … unless the Appellant furnishes the information in writing to the Respondent no later than ten days after this Appeal is set down for trial, the Appellant will require leave of the trial judge [under Rule 96(1)], in order to introduce that information at trial.

I suspect that the Appellant is of the view that it can make its case without introducing the privileged information at trial.

It is quite unclear how the trial judge could impose the suggested potential Rule 96(1) “penalty,” for not disclosing its reasons on discovery, if at trial the taxpayer simply advances its reasons for the transactions without referring to any related legal advice.

Neal Armstrong. Summaries of 632738 Alberta Ltd. v. The King, 2023 TCC 117 under General Concepts – Solicitor-client privilege, Purpose/intention.

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