News of Note
Xu – Tax Court of Canada finds that an informal letter attaching documents and containing only a brief request for adjustment qualified as an objection
Email this ContentThe taxpayers were assessed to deny the new residential rental unit rebate. Two weeks later, the taxpayers provided much of that supplemental information along with a covering letter, which stated that it was “to request a re-assessment of case #50499531,” and spoke with a CRA representative. In finding that the taxpayers’ submission qualified as an objection sufficient for the purposes of ETA s. 301(1.1), Bocock J stated:
The form [of the submission] was not usual, but there is no prescribed form.
… The submission, dated two weeks after the notice of reassessment, while not perfectly detailed, was sufficient to initiate the objection process responsive to an audit and conclusions already in active dispute.
Neal Armstrong. Summary of Xu v. The King, 2022 TCC 108 under ETA s. 301(1.1).
CRA indicates that no arrears interest would arise where non-capital loss carryforwards eliminated a tax payable balance arising from reassessments
A taxpayer reported a capital loss in year 1 of $50 million, which was applied to offset a $1 million capital gain realized in year 1 and a $49 million capital gain realized in year 2. When CRA denied the capital loss, the taxpayer requested that a non-capital loss balance in existence in year 1 be carried forward to offset both taxable capital gains.
CRA noted that s. 161(7) – which contemplates that where there is a carryback of a loss to eliminate a tax payable balance for a taxation year, interest generally will accrue on that balance until a specified effective date of the carryback – does not apply to a low carryforward. Here, provided that the loss carryforward eliminated the tax payable balance otherwise arising from the capital loss denial, no arrears interest would be charged on that assessment.
Neal Armstrong. Summary of 11 May 2023 Internal T.I. 2022-0936701I7 under s. 161(1).
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).
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.