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5 August 2020- 11:47pm Samsung Heavy Industries – Supreme Court of India finds that a Mumbai liaison office for a domestic construction project was not a PE Email this Content Samsung, a resident of South Korea, was a member of a consortium for fabricating and installing offshore drilling plaforms at an oil development off the west coast of India of an India oil company (“ONGC”). ... Also… the Mumbai Project Office … would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. ... Samsung Heavy Industries Co Ltd (Supreme Court) CIVIL APPEAL NO. 12183 of 2016 under Treaties – Income Tax Conventions – Art. 5. ...

10 September 2020- 11:33pm Ray-Mont – Federal Court of Appeal confirms applying 4-part Wiebe test to find employment notwithstanding intent of Quebec parties not to be employer-employee Email this Content Notwithstanding that a logistics company and workers performing loading work for it had intended their relationship to be one of independent contractors rather than of employment, the Tax Court went on to apply the four objective tests in Wiebe as to the presence of an employment relationship to find that there was one. ... This is a different articulation of the tests than by Graham J in Insurance Institute- that under “ Connor Homes … a different test must be applied [than in Wiebe] when the worker and the payor share a common intention.” ... Canada (National Revenue), 2020 FCA 113 under s. 5(1) and General Concepts – Judicial Comity. ...

28 September 2020- 11:11pm Pike – Federal Court of Australia, Full Court finds that an individual had his centre of vital interest where he was employed, rather than where he had his greater personal ties Email this Content Unusually, the tiebreaker rule for individuals in the Australia-Thailand Treaty applied the test of the country of the individual’s habitual abode second, and the country “with which the person’s personal and economic relations are the closer” third, rather than in the reverse order. ... The Court confirmed the primary judge’s conclusion that Mr Pike had a habitual abode in both countries, stating inter alia that “there is no warrant … for imputing that the habitual abode of a person is the place where the individual has spent more days.” ... Summary of Commissioner of Taxation v Pike [2020] FCAFC 158 under Treaties – Income Tax Conventions – Art. 4. ...

22 February 2022- 11:02pm Fyfe – Tax Court of Canada rejects a CRA position that a taxpayer who regularly reported business income was not carrying on a business Email this Content The taxpayer spent approximately six months per year doing work for one client (mostly construction and repair work), and the balance of the year sailing in the Bahamas. ... CRA denied his WITB claims on the surprising basis that he had no source of income and, therefore, no income – rather than on the basis that he was under-reporting his income. ... The Queen, 2022 CCI 20 under s. 122.7(1) – working income – para. (c). ...

28 March 2022- 11:45pm Shaker – Federal Court finds that a trustee of a real estate trust does not hold any “interest in real property” that can be charged by CRA Email this Content CRA obtained an interim order to charge the interest of Mr. ... Shaker’s legal interest in the Blue Jays Way property as trustee, and before ordering the interim charge to be discharged, Walker J stated: Trust property is not available to the creditors of a trustee where the debt in question is the trustee’s personal debt …. ... To conclude otherwise would improperly and adversely impact the interests of the third-party beneficiaries of the VSI Trust. … … Canada North Group stat[ed] “[p]roperty held in trust cannot be said to belong to the trustee because ‘in equity, it belongs to another person’ (Henfrey [[1989] 2 S.C.R. 24]], at p. 31)”. ...

18 April 2022- 10:50pm Salama – Court of Quebec finds that the principal residence exemption was available for the whole of a duplex Email this Content The ARQ took the position that a duplex sold by the taxpayer consisted of two distinct units – the second storey, occupied by her and her son, and the ground floor (with a separate municipal address) occupied (with its own kitchen, bathroom etc.) by her mother – so that she was only entitled to the principal residence exemption on half the gain. ... Agence du revenu du Québec, 2022 QCCQ 718 under s. 54 – principal residence. ...

19 June 2022- 11:11pm Collins Family Trust – Supreme Court of Canada finds that courts cannot exercise their equitable jurisdiction to cure unintended tax consequences Email this Content A plan for the tax-free distribution of funds of family companies to family trusts entailed transactions that were intended to cause s. 75(2) to attribute substantial dividends, paid by the family companies to the trusts, to family holding companies so that the s. 112(1) intercorporate dividend deduction applied. ... Before allowing the appeal and dismissing the trusts’ petition, and in finding that the principle in Fairmont Hotels and Jean Coutu- that a “court may not modify an instrument merely because a party discovered that its operation generates an adverse and unplanned tax liability”- was not limited to situations of requested rectification and applied as well to the equitable remedy of rescission, Brown J stated: … Fairmont Hotels and Jean Coutu bar a taxpayer from resorting to equity in order to undo or alter or in any way modify a concluded transaction or its documentation to avoid a tax liability arising from the ordinary operation of a tax statute. … While a court may exercise its equitable jurisdiction to grant relief against mistakes in appropriate cases, it simply cannot do so to achieve the objective of avoiding an unintended tax liability. ... Collins Family Trust, 2022 SCC 26 under General Concepts – Rectification and Rescission, and s. 220(1). ...

21 July 2022- 11:55pm CIBC – Tax Court of Canada finds that the predominant element supplied by PC Bank to CIBC was a right to access Loblaw customers, engaging the (r.5) HST financial service exclusion Email this Content A subsidiary ("PC Bank") of Loblaw (“LCL”) had agreed with CIBC for CIBC to provide retail banking services under LCL's President's Choice trademark. ... (r.5) of the financial service definition provided an exclusion from financial service for “property … that is delivered or made available to” CIBC “in conjunction with” CIBC selling financial products of PC Bank, the supply made by PC Bank to CIBC was taxable. ... The Queen, 2022 TCC 83 under ETA s. 123(1) – financial service, para. ...

15 November 2022- 12:00am Adboss – Tax Court of Canada strikes the Minister’s pleading of an assumption that a company’s “controlling mind and management” was in Canada as a mixed statement of fact and law Email this Content The Minister’s reply, to the taxpayer’s appeal of an assessment of it to deny zero-rating of taxable supplies made by it to a mooted non-resident (“Lowfroc”) on the basis that Lowfroc was a resident of Canada, pleaded “assumptions” including that Lowfroc was incorporated in Cyprus, that the taxpayer had no correspondence with any Lowfroc-connected persons in Cyprus and that “at all material times, the controlling mind and management of Lowfroc was in Canada.” Lafleur J found that the quoted phrase referenced the jurisprudential test of “central management and control,” and further noted that the “location of the ‘central management and control’ of a corporation … is actually the legal test that must be applied to determine the residency of a corporation.” In explaining the decision to strike under Rules 53(1)(a) (“delay … fair hearing”) and (c) (“abuse of … process”), she stated: [B]ecause the Appellant will have to speculate as to the facts underlying the conclusion of mixed fact and law of the Minister that the “controlling mind and management” of Lowfroc was in Canada, and because the Appellant therefore cannot be properly prepared for and proceed with discoveries, this will prejudice or delay the fair prosecution of the appeal and constitutes an abuse of the Court’s process. ...

7 February 2023- 12:04am Marchessault – Court of Quebec finds that frequent visits by an Alberta worker (without a permanent Alberta home) to his Quebec parents and friends did not establish Quebec residence Email this Content The taxpayer started in 2006 to work exclusively at a succession of pipeline-construction jobs in Alberta (or, on occasion, in B.C.) in all but about three or four of the winter months- during which he would visit his parents and friends in Quebec (while generally staying in a hotel), or travel to warmer locations. ... Marchessault must deprive himself of the opportunities afforded by his mode of life to visit his parents in order to break his ties of residence to Quebec. … Mr. ... However, the … [quoting Thomson] “spatial bounds within which he [spent] his life” were within Alberta throughout the Period …. ...