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In finding that this Italian legislation was contrary to the VAT Directive, so that VAT was applicable to the payments made by an Italian subsidiary (San Domenico Vetraria) to its Italian parent (Avir) to reimburse the latter for the payroll costs of a staff member who had been seconded to San Domenico Vetraria, the 7 th Chamber of the European Court of Justice stated: [A] supply of services is effected ‘for consideration’ … if there is a legal relationship between the provider of the service and the recipient pursuant to which there is reciprocal performance, the remuneration received by the provider of the service constituting the value actually given in return for the service supplied to the recipient. …. [T]he secondment was carried out on the basis of a legal relationship of a contractual nature between Avir and San Domenico Vetraria … [and] there was reciprocal performance, namely the secondment of a director from Avir to San Domenico Vetraria, on the one hand, and the payment by San Domenico Vetraria to Avir of the amounts invoiced to it, on the other. ... Agenzia delle Entrate, Case C-94/19 (ECLI:EU:C:2020:193) (7 th Chamber) under ETA, s. 123(1) – supply. ...

12 July 2020- 11:15pm Matthew Macisaac Consulting – Tax Court dismisses request for Rule 58 determination that reporting gains as on capital rather than income account was not a “misrepresentation” Email this Content The taxpayer was reassessed for quite a number of taxation years for which the main substantive issue was whether dispositions of shares in an offshore fund were on capital account – but many of the earlier years were beyond the normal reassessment period. ... In dismissing the motion, she stated: I cannot agree with the Appellant’s proposition … that a question of income versus capital necessarily amounts to a difference in opinion. … [T]he factual circumstances of the appeal will determine whether the issue of income versus capital is purely a difference of opinion or not. … The question of whether a misrepresentation under subparagraph 152(4)(a)(i) contemplates fact only or mixed-law-and-fact, should properly remain with the trier of fact to determine in conjunction with the related substantive issues. ...

4 May 2021- 10:01am Gervais Auto – Quebec Court of Appeal finds that 10% interest on unsecured loans from shareholders was not unreasonable Email this Content The taxpayer financed its inventory of used automobiles held for resale through unsecured loans from the family Holdcos that were its shareholders. ... Before reversing the decision below to confirm these reassessments, the Court of Appeal stated (at para. 13, TaxInterpretations translation): The appellant was not required to make out a prima facie case that the 7.89% rate was unreasonable but, rather, that the assumption, on which the respondent relied in assessing it, that the 10% interest rate deducted from its income for the taxation years in issue was not "reasonable in the circumstances," … was prima facie … unsound. ... Agence du revenu du Québec, 2021 QCCA 459 under s. 20(1)(c) and General Concepts – Onus. ...

27 May 2021- 11:09pm Friedman – Federal Court of Appeal suggests that Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate Email this Content The Friedmans, a married couple, who had each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, appealed the Federal Court decision granting a compliance order against them under s. 231.7(1). ... In rejecting the second submission, Pelletier JA stated that any failure to follow “judicial comity,” i.e., the expectation “that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why … is not a basis for appellate intervention.” ... Canada (National Revenue) 2021 FCA 101 under General Concepts – Judicial Comity and Charter – s. 13. ...

6 March 2022- 11:17pm Glenogle Energy – Federal Court decision effectively penalizes a taxpayer for filing s. 97(2) elections on a timely basis rather than late Email this Content In January 2015, the taxpayer transferred resource properties to a limited partnership that was wholly-owned by it, directly and indirectly. ... In dismissing the taxpayer’s application for judicial review, Aylen J stated: I am satisfied that the Applicant’s “explanation” was so devoid of particulars that it did not amount to an explanation at all. … The Applicant … failed to explain in any meaningful way why it would be just and equitable for the Minister [to grant the request]. … I am not satisfied that the Applicant has demonstrated any error by the Minister’s delegate in his finding that the amendment requests constituted an attempt to circumvent the successor rule stipulated in section 66.7 …. ...

31 May 2022- 10:59pm Kraft Heinz – BC Supreme Court accepts that a self-help Dutch-law annulment declaration retroactively voided a s. 212.3(10)(b) contribution Email this Content A B.C. ... The request for rescission, was denied essentially for reasons of redundancy: [T]he capital contribution was governed by foreign (Dutch) law and has been completely nullified, “ ab initio ”, pursuant to Dutch law. ... Canada (Attorney General), 2022 BCSC 796 under General Concepts – Rectification & Rescission. ...

Before confirming the decision below to dismiss the application, LeBlanc JA set the stage by stating that “[t]he true intentions of the parties, as they emerge from extrinsic materials when it comes to Article 25 (namely to promote the exchange of information to the maximum extent possible with a view, notably, of preventing tax evasion and avoidance), are reflected … in the actual language of that provision, coupled with that of the Interpretative Protocol.” He then found that “it was reasonably open to the CRA … to proceed with the … RFIs at the time it did in view of the fact that [the taxpayers] had, to that point, denied, on more than one occasion, having any such [foreign] assets, revenues or activities in the taxation years at issue.” Regarding the taxpayers’ submission that the specific listing in the Protocol, of types of information that could be requested, established a “ceiling” for such requests, LeBlanc JA stated that “paragraph 2(b) of the Interpretative Protocol establishes a threshold, not an upper limit” and that “on a reasonableness analysis … there is no issue with the fact that the CRA provided the Swiss Authorities with more information—essentially background information—than what was minimally required by paragraph 2(b) of the Interpretative Protocol.” ...

He stated: [T]he appellant spent almost all of his time playing poker. … Despite his unusual lifestyle and his propensity to ridicule his opponents, the appellant was a serious businessman. … The appellant adopted objective standards of risk management and minimization. ... At this level of winnings by the appellant over such a long period of time, I am satisfied that the appellant had a reasonable expectation of being able to make a living at playing poker …. ... The King, 2023 CCI 12 under s. 3(a) – business source. ...

Matco then identified a mutual fund management company which wanted to effect a public offering of shares of the taxpayer and use the proceeds (of $100M) for a new bond trading business to be carried on in the taxpayer – a transaction which then proceeded. ... In finding that the transactions (which he described, at para. 6, as “narrowly circumventing the text of s. 111(5)”) did not accord with the rationale of s. 111(5), so that the use of the tax attributes had been properly denied under s. 245(2), Rowe J stated: [T]he appellant was gutted of any vestiges from its prior corporate “life” and became an empty vessel with Tax Attributes. … Moreover, the shareholder base of the taxpayer underwent a fundamental shift throughout the transactions …. Matco achieved the functional equivalent of … an acquisition of [de jure] control through the Investment Agreement, while circumventing s. 111(5), because it used separate transactions to dismember the rights and benefits that would normally flow from being a controlling shareholder. ...

10 May 2024- 12:09am DAC – Tax Court of Canada finds no abuse in avoiding CCPC status by continuing to BVI Email this Content With a view to its imminent disposition of the shares of a subsidiary, the taxpayer continued to the British Virgin Islands, with the result that it ceased to be a Canadian-controlled private corporation (CCPC) and became a private corporation that was not a CCPC (its central management and control remained in Canada). ... In finding no abuse of s. 123.3, D’Arcy stated: Parliament has chosen, for policy reasons, to have different sets of rules for different corporations. … Prior to being continued in the British Virgin Islands, the Appellant was on one side of the dividing line [a CCPC] and, after it was continued, it was on the other side of the dividing line [a non-CCPC]. … [T]he Appellant’s choice to be taxed as a non-CCPC did not abuse section 123.3 since Parliament only intended it to apply to a corporation’s investment income that is taxed under the regime for CCPCs. ... The King, 2024 TCC 63 under s. 245(4), s. 123.3, s. 123.4(1) – full rate taxable income – (b)(iii) and s. 250(5.1). ...