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25 January 2019- 12:22am Bourgault – Tax Court of Canada independently assesses whether a rectification judgment was “justifiably obtained” Email this Content The written agreement for the purchase by the taxpayer of shares of a real estate corporation (“Quatre Saisons”) stated that the purchase price was to be satisfied by the payment to the vendor (“Placeval”) of 50%, then 30%, of the sales proceeds of real property of Quatre Saisons- and then sewed confusion by stating that such proceeds were to be paid to Placeval as commissions. ... Before granting the taxpayer’s appeal from the assessment, Favreau J first indicated that the Crown was not bound by the Court order “as neither the Attorney General of Canada nor the Minister was involved in the application,” and also found that the judgment was not “ res judicata.” ... The Queen, 2019 CCI 6 under General Concepts – Rectification. ...

1 February 2019- 2:33am Kaul – Tax Court of Canada finds that art work was donated at a FMV equal to its cost rather than appraised value Email this Content The taxpayers bought sets of artists’ prints (each set consisting of 11 prints) at a purchase price that might be 7 or 10 times the vendor’s cost, and then immediately donated 10 out of the 11 prints in each set to registered charities at appraised values (reflected in the charitable receipts issued) around 3 times their purchase price. ... The Queen, 2019 TCC 17 under General Concepts – FMV – Other. ...

7 March 2019- 12:26am FTQ – Federal Court of Appeal affirms that a payment in substance made to walk away from a worthless investment did not qualify under s. 18(1)(a) Email this Content The taxpayer agreed with the City of Chandler that it would no longer use any loan repayment proceeds received by it from a City-owned corporation- that had failed in an costly attempt to restart a paper mill close to the City – to invest in a prospective replacement economic-development LP to be sponsored by the City, but would instead make a “gift” of the loan repayment proceeds (which ended up totalling $9.3 million) to the City, for which it received charitable receipts. ... The Queen, 2018 CCI 3, aff'd on s. 18(1)(a) grounds 2019 CAF 36 under s. 110.1(1)(a) and s. 18(1)(a) – income-producing purpose. ...

Treaty does not exempt shares deriving their value from Canadian oil and gas licences – even where the Canadian business is carried on “in” them Email this Content Para. 5(a) of the Canada-U.K. ... Summary of 7 June 2017 Canadian Petroleum Tax Society Roundtable, Q.3 under Treaties – Income Tax Conventions – Art. 13. ...

12 April 2019- 12:32am Samaroo – malicious prosecution claim against CRA founders in B.C. ... Although CRA had suspected that the Samaroos had failed to provide the “till tapes” for one of the daily shifts to the corporate bookkeeper, Harris JA indicated that the trial judge had erred in considering “proof of the till tape theory, a particular scheme, as essential to proving the actus reus ” of the alleged s. 239(1)(d) offence- whereas, in fact: [T]he actus reus of the offence does not depend on proof of any particular method by which taxable income is not reported. ... Canada Revenue Agency, 2019 BCCA 113 under General Concepts – Malicious Prosecution. ...

5 May 2019- 11:33pm Praesto Consulting – Court of Appeal of England and Wales finds that a company was entitled to input tax credits for VAT on legal-fee invoices addressed only to its executive Email this Content A key employee (Mr Ranson) of an IT consulting firm (“CSP”) left along with three other employees to set up a competing firm (“Praesto”). ... The availability to Praesto of an input tax credit for the VAT included in the Sintons invoices turned on a VAT provision providing such a credit for “VAT on the supply to him [the taxable person] of any goods or services being … goods or services used or to be used for the purpose of any business carried on or to be carried on by him.” ... CSP was seeking to put Praesto out of business as its competitor. … The FTT [below] was satisfied and found that the litigation was effectively being brought against Mr Ranson and Praesto, even though Praesto had not been joined to the proceedings. ...

7 May 2019- 11:49pm CRA indicates that "an interest … in a corporation other than shares" includes debt Email this Content A private foundation that, at the end of a taxation year, holds more than 20% of a class of a corporation’s class of shares (for example, as the result of a bequest) faces a potential penalty under s. 188.1(3.1). ... The issue lies in s. 188.1(3.2), which states that if a private foundation enters into a transaction to avoid a “divestment obligation percentage” by substituting shares for "an interest … in a corporation other than shares," then such interest is deemed to have been converted back into shares at their FMV. When asked about this, the Charities Directorate stated: [W]e take the said term [“interest”] to include (in a broad, general sense) any right to have the advantage accruing from anything, and any right in the nature of property (such as a right of a creditor for repayment from the debtor's assets, as in the foundation's case), and not limited to stock options or other rights to acquire shares …. ...

9 May 2019- 11:33pm Hoch – Tax Court of Canada finds that “or” is generally disjunctive Email this Content The principal rabbi at a Toronto schul beneficially owned (together with his wife) 3/8ths a Toronto home, and the schul beneficially owned the other 5/8ths. ... He indicated that “or … in the ordinary sense is prima facie disjunctive” but “can also be conjunctive in limited circumstances,” – and such limited circumstances were not made out here. ...

28 May 2019- 12:39am MEO – European Court of Justice finds that an early termination fee was consideration for the contracted service Email this Content Subscribers to the services of a Portuguese telecommunications company (“MEO”) agreed to pay for a minimum subscription period- and when they discontinued service before the end of that guaranteed period they were required under the terms of their contracts to pay a lump sum equal to their monthly subscription fee multiplied by the number of remaining months in the guaranteed period. ... Summary of MEO — Serviços de Comunicações e Multimédia SA v. Autoridade Tributária e Aduaneira, ECLI:EU:C:2018:942 (ECJ (5th Chamber)) under ETA s. 123(1) – consideration. ...

6 June 2019- 11:09pm PCI Géomatics – Court of Quebec applies McLarty to find that a loan which was repayable only out of increasing revenues was not a forgivable loan Email this Content The ARQ assessed on that basis that a non-interest-bearing loan received by a satellite–imaging company (PCI) from Industry Canada was a “forgivable loan,” so that its amount reduced the SR&ED pools of PCI for investment tax credit purposes. ... In finding that the loan was not a forgivable loan, Dortélus JCQ noted that PCI was required to provide loan security and was subject to various restrictive covenants, and then stated: The fact that there existed a certain uncertainty as to the frequency of repayment of the loan which … depended on fluctuations in the PCI revenues does not suffice to qualify the amounts advanced as government aid. ... Agence du revenu du Québec, 2019 QCCQ 2688 under s. 127(9) – government assistance. ...