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11 February 2019- 12:30am Forbes Painting – Federal Court finds that CRA is required to consider financial hardship in s. 221.2 credit transfer requests Email this Content The taxpayer (Forbes) did not file its corporate income tax returns for its 2006 and 2007 years, showing a refund position, until well beyond the three-year limitation under s. 164(1) for claiming those refunds. ... Before returning the matter for redetermination by another delegate, Boswell J stated: The ability of a corporate taxpayer to continue as a going concern … is a factor that should be weighed …. …When assessing a request for the re-apportionment of an SBC, the Minister should also have regard to whether denial of the request might possibly result in the Minister’s inability to collect outstanding tax arrears from a taxpayer. … [T]he decision [is] unreasonable because it is not apparent or transparent that Forbes’ financial hardship was a factor in the decision-making process. ...

14 May 2019- 12:30am Pierre – Court of Quebec finds that a couple had a fraught but “conjugal” relationship Email this Content In Quebec they are referred to as “de facto spouses” rather than “common-law partners” but otherwise the federal and Quebec definitions are quite similar. Both reference the concept of cohabiting “in a conjugal relationship,” and both provide that they cease to be common-law partners/spouses if (to use the Quebec language) they have ceased “cohabiting … for a period of at least 90 days … because of a breakdown of their conjugal relationship.” ... Agence du revenu du Québec, 2019 QCCQ 2137 under s. 248(1) – common-law partner. ...

28 May 2019- 12:40am Renaud – Federal Court of Appeal affirms that a benevolent law practice for indigent clients thereby had a “personal aspect," justifying use of REOP test to deny losses Email this Content A Quebec lawyer who worked full-time as a federal government employee also worked 5 to 15 hours a week providing legal services to clients of modest means. ... In affirming the decision below, Nadon JA stated that “there is no doubt that the law practice of the appellant … certainly qualifies as having a personal aspect. ... Canada, 2019 CAF 154 under s. 3(a) – reasonable expectation of profit. ...

12 July 2019- 12:06am Fortyseven Park Street – Court of Appeal of England and Wales finds that users of time shares in complex with boutique-hotel level of service were using hotel or similar accommodation Email this Content The applicable VAT Directive and the similarly-worded UK VAT legislation provided that an otherwise-exempt supply by way of “leasing or letting of immovable property” was unavailable for “the provision of accommodation … in the hotel sector or in sectors with a similar function.” ... Newey JA found that the exclusion applied notwithstanding the long-term nature of the rights acquired, stating: The fact that Membership gives "the flexibility to enjoy short stays of a stated maximum amount each year, in an environment similar to a hotel and with the services which can be expected in a hotel" … was surely something that the FTT [below] could properly take into account in arriving at its assessment. ... Summary of Revenue and Customs v Fortyseven Park Street Ltd, [2019] EWCA Civ 849 under ETA s. 123(1) – residential complex. ...

13 September 2019- 12:13am Levatte Estate – Tax Court of Canada finds that 40(4) avoided the need for an estate to make a principal residence designation Email this Content An individual (Mr. ... Thus, it was not necessary that a principal residence exemption had been made – only that it would have been available. ... Warner[‘s] … husband was dying of cancer and in fact passed away only days later …leaving her as sole parent of three children. … I do not require specific details to appreciate what a difficult time this would have been for Ms. ...

6 January 2020- 11:52pm Healius – Federal Court of Australia finds that lump sum payments made to lock-up doctors as customers for a 5-year period were currently deductible Email this Content A subsidiary (“Idameneo”) of an Australian public company that provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... At the end of the five year period, the doctor was free to go …” “the character of the outgoings was as a payment to win a customer” The above finding that a five-year agreement did not give rise to an enduring benefit is consistent with BP Australia, which has also been cited in Canada. ... Summary of Healius Ltd v Commissioner of Taxation [2019] FCA 2011 under s. 18(1)(b) – capital expenditure v. expense – contract purchases. ...

30 April 2020- 12:48am CRA states that a PSB can deduct the “cost” of car loan interest under s. 18(1)(p)(ii) to the extent of the benefit conferred on the individual qua employee rather than shareholder – but not CCA Email this Content Under s. 18(1)(p)(ii), a corporation carrying on a personal services business is entitled to deduct “the cost to the corporation of any benefit … provided to an incorporated employee … that would, if the income of the corporation were from a business other than a [PSB] be deductible in computing its income.” ... CRA went on to indicate that no CCA could be claimed by the corporation (stating that “a capital cost allowance amount is not the cost of a benefit”) – except that if the corporation had a sales business, CCA could generally be deducted under s. 18(1)(p)(iii) to the same extent as CCA claims could have been made under s. 8(1)(j)(ii) if the marketing activity had been carried on by the individual as a sales employee. ...

22 May 2020- 12:02am LPIC – Federal Court of Appeal finds that LPIC was not exempt under s. 149(1)(d.5) because its owner, the Law Society, did not provide municipal-type services Email this Content Lawyers’ Professional Indemnity Co. did not qualify under s. 149(1)(d.5) as being owned by a “municipal or public body performing a function of government in Canada” because its parent, the Law Society of Upper Canada, although a “public body,” did not satisfy the test of “performing a function of government.” ... The Law Society did not so qualify because its “primary focus … is on the regulation of the legal profession in Ontario, and it does not provide the type of services that are typically provided by municipalities or municipal bodies in a localized geographical area.” ... Canada, 2020 FCA 90 under s. 149(1)(d.5) and Statutory Interpretation – Interpretation Act – s. 14, Redundancy and Consistency. ...

24 May 2020- 11:53pm Fowler – UK Supreme Court finds that deeming an employee to be an independent contractor did not oust the Treaty Employment-Income Article Email this Content A U.K. domestic income tax provision deemed the diving activities of a South African resident in the North Sea to be the carrying on of a U.K trade, notwithstanding that in fact he was an employee. ... He noted that the UK domestic deeming provision instead only had a limited purpose, which was to give the diver access to more generous deductions from income, and stated that to apply this limited “deeming provision … so as to alter the meaning of terms in the Treaty with the result of rendering a qualifying diver immune from UK taxation would be contrary to its purpose.” ... Summary of Fowler v Commissioners for Her Majesty’s Revenue and Customs [2020] UKSC 22 under Treaties – Income Tax Conventions- Art. 3 and Statutory Interpetation – Interpretation Provisions. ...

20 July 2020- 12:01am Immeubles Zamora – Quebec Court of Appeal confirms that an LP sold a seniors residence shortly after construction to an unsolicited purchaser on income account Email this Content Bouchard JCA agreed with the Court of Quebec that two taxpayers, who were each 10% limited partners of a limited partnership that constructed a seniors residence, as well as owning the general partner, realized, as to their 10% shares, gains on income account when, shortly after the facility opened its doors, one of them was approached by a business associate, who asked what was their price, and agreed to purchase for the price that was named. Bouchard JCA indicated this being an isolated transaction and their not being “flippers” was not decisive, the judge had not erred in noting the complete absence of any business plan or other documentary proof of their lack of motivating intention to sell and that “the judge did not commit a reviewable error … by holding that the appellants had a secondary intention to divest themselves of their project in the event of an interesting offer being made to them.” ... Agence du revenu du Québec, 2020 QCCA 894 under s. 9 – capital gain v. profit – real estate. ...