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16 August 2019- 12:24am Keybrand Foods – Tax Court of Canada finds that if A controls de facto B and C, B controls de facto C Email this Content The taxpayer and its parent (BWS) were guarantors of loans to an unrelated corporation (Vidabode) which had defaulted on loans from GE Capital. ... Jorré DJ stated that at the time of this second borrowing: the reasonable expectation … was that the company would quickly collapse. ... In finding that this meant that the taxpayer did not deal at arm’s length with Vidabode, so that no ABIL could be claimed, Jorré DJ stated: The practical effect of the casting vote is the same as if BWS has the power to name three out of five directors. … S ilicon Graphics … is met. ...

18 August 2019- 10:39pm Glencore – High Court of Australia finds the Australian Taxation Office was entitled to use privileged documents included in the Paradise Papers leak Email this Content Glencore companies sought an injunction restraining the Australian Taxation Office from making any use of privileged documents that had been prepared for Appleby in Bermuda to provide legal advice on the Glencore inbound structure and which had ended up in the ATO’s hands as a result of their inclusion in the Paradise Papers. ... After referencing the “more general, public interest … in the fair conduct of litigation, which requires that all relevant documentary evidence be available,” the Court further stated: In striking the balance between the two competing public interests, the law was not concerned to further a client's personal interest in preventing the use which might be made by others of the client's communications if they obtained them. … It is the policy of the law that the public interest in the administration of justice is sufficiently secured by the grant of an immunity from disclosure. ... Summary of Glencore International AG v Commissioner of Taxation, [2019] HCA 26 under s. 232(1) – solicitor-client privilege. ...

13 November 2019- 12:07am Addy – Federal Court of Australia finds that the imposition of flat tax on UK working-holiday visa holders contravened the Treaty non-discrimination Article Email this Content The taxpayer, who was a British citizen aged 23, came to Australia on a “working visa” for a 20-month stint, during which period she was found by Logan J to be resident in Australia on ordinary principles. ... A resident “national” of Australia undertaking the same work as did Ms Addy … would have the benefit of the tax free threshold. ... Summaries of Addy v Commissioner of Taxation [2019] FCA 1768 under Treaties – Income Tax Conventions – Art. 25 and ITA s. 2(1). ...

As this Court has reiterated on numerous occasions, this approach requires that the words of the statute be read “in their entire context and in their grammatical and ordinary sense harmonious with the scheme of the Act, the object of the Act, and the intention of Parliament” …. ... Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise …. ... Canada (Attorney General), 2019 SCC 66 under Statutory Interpretation – Ordinary Meaning. ...

7 May 2020- 12:13am Toronto-Dominion Bank – Federal Court of Appeal finds that the deemed trust for unremitted GST defeated the Bank’s security interest on a voluntary sale of the mortgaged home Email this Content TD Bank made a mortgage loan to an individual who, unbeknownst to it, had unremitted GST collections. ... She recognized that First Vancouver had found that this deemed trust did not apply to “ bona fide purchasers for value” of the tax debtor’s property (so that the trust attached to the sales proceeds rather than following the sold property) – but found that this exception did not apply to the payment of the sales proceeds to the Bank as a secured creditor. ... Respecting the implications of this decision, she stated: [S]ecured lenders … may identify higher risk borrowers (which might include persons operating sole proprietorships), require borrowers to give evidence of tax compliance, or require borrowers to provide authorization to allow the lender to verify with the Canada Revenue Agency whether there are outstanding GST liabilities then known to the Agency. ...

12 May 2020- 11:25pm Roofmart – Federal Court of Appeal states that Hydro-Québec regarding limitations on unnamed person requirements (UPRs) “ought not to be followed” Email this Content Roofmart, a large supplier of roofing materials to residential and commercial contractors in Ontario, has unsuccessfully appealed the Federal Court’s granting of an application by the Minister under s. ITA 231.2(3) and ETA s. 289(3) for Roofmart to disclose various particulars for all of its customers who in the past 4 ½ years had made purchases of construction materials from Roofmart exceeding specified dollar thresholds. ... Canada (National Revenue), 2020 FCA 85 under s. 231.2(3) and s. 231.2(3)(a). ­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­ ...

10 August 2020- 11:10pm Addy – Federal Court of Australia, Full Court finds that the imposition of flat tax on UK working-holiday visa holders did not contravene the Treaty non-discrimination Article Email this Content The taxpayer, who was a British citizen aged 23, came to Australia on a “working visa” for a 20-month stint, during which period she was found by the Court to be a deemed Australian resident (based on her satisfying a 183-day presence test). ... Commentary … warns against “unduly” extending the reach of Art. 24 of the Model Tax Convention (here Art. 25 of the Treaty) to “cover so-called “indirect” discrimination.” ... Summary of Commissioner of Taxation v Addy [2020] FCAFC 135 under Treaties – Income Tax Conventions – Art. 25. ...

14 December 2020- 11:04pm Victus Academy – Tax Court of Canada finds that the hockey program provided by a hockey school was (even if a separate supply) an exempt educational service Email this Content A for-profit private school took the position that it was providing separate supplies of exempt academic programming and taxable hockey training to its students, so that it could claim input tax credits for its significant costs of providing the hockey-school aspect of its services (including the fees of contractors who provided the training). ... Regarding the s. 2 exemption, which refers to a “supply made by a school authority … of a service of instructing individuals in a course that is provided primarily for elementary or secondary students,” she found an implication in Sched. ... The s. 3 exemption relevantly refers to a “supply of … services … made by a school authority primarily to elementary or secondary school students during the course of extra-curricular activities organized under the authority and responsibility of the school authority.” ...

Leblanc JA agreed, stating: [I]t would be incongruous, to say the least, if provisions purporting to assist a taxpayer caused more harm to a well-meaning taxpayer than to a less well-meaning one …. This cannot be the result that Parliament intended …. Accordingly, he found that the "amount" referred to in ss. 280 and 280.1 on which the interest or late-filing penalty was to be calculated “can only represent, in circumstances such as these, the amount of tax actually owed by the taxpayer” (i.e., the tax as reduced by the taxpayer’s rebate entitlement). ... Villa Ste-Rose Inc., 2021 CAF 35 under ETA s. 280(1), s. 228(6), s. 256.2(3) and Statutory Interpretation – Resolution of Ambiguity. ...

16 November 2021- 10:47pm McNeeley – Federal Court of Appeal applies the principle that the Act must prevail over an overlapping Regulation Email this Content A distribution to an employee under an employee benefit trust (EBP) is taxable under s. 6(1)(g) rather than being subject to the usual trust distribution rules in s. 107. ... In finding that it was an EBP, he cited Oldman for the proposition that “[o]rdinarily … an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation,” and then stated: [S]ince the definition of a prescribed trust is set out in the Regulations, the paramountcy of the definition of an employee benefit plan in the Act must govern. ... Canada, 2021 FCA 218 under s. 248(1) – EBP and Statutory Interpretation – Regulations/Statutory Interpretation. ...