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3 November 2020- 11:00pm Westcoast – Tax Court of Canada finds that an employer was not entitled to ITCs for the GST/HST on reimbursed employee health care services Email this Content Westcoast reimbursed (through Manulife as its agent) employees who had incurred various health care services – including some which were GST/HST-taxable, namely, acupuncture, massage therapy, naturopathy and homeopathy services. ... The Queen, 2020 TCC 116 under ETA s. 175(1)(b), s. 123(1) – recipient and s. 170(1)(b)(ii). ...

17 November 2020- 10:46pm PCI Géomatics – Quebec Court of Appeal finds that a loan that was not repayable if the borrower’s revenues consistently declined was a forgivable loan Email this Content A company (PCI) engaged in R&D activities for the development of software for satellites, received a non-interest-bearing loan from Industry Canada that was repayable by it (on a formula basis) over the following 15 years: in equal annual instalments if its revenues were stable; in amounts up to 1.65 times the advances received if its revenues increased consistently and significantly over the 15-year repayment period – but not at all if its revenues decreased steadily throughout the 15-year repayment period. ... PCI Géomatics Entreprises Inc., 2020 QCCA 1342 under s. 127(9) – government assistance. ...

10 December 2020- 11:20pm Edward Enterprise – Federal Court refuses addition to a disclosure compliance order of a condition that CRA give notice before disclosing the information to another authority Email this Content The Minister sought a compliance order under ETA s. 289.1(1) (similar to ITA s. 231.7(1)) to compel a Canadian corporation (EEIGI) to provide information needed in an audit. ... Southcott J stated: … EEIGI is seeking this relief without having articulated with any precision a basis in either fact or law for its concern that it may in the future face dissemination of the Required Information in a manner that offends the Charter. … [R]equiring CRA to disclose, in the course of an investigation, the fact that the investigation is taking place could compromise the investigation. ...

4 January 2021- 10:46pm BCS Group – Federal Court of Appeal finds that a corporation must be represented by counsel in General Procedure appeals Email this Content In Masa Sushi, Graham J found that a corporation could not appear “in person” in a General Procedure matter and had to appear through counsel, so that a Rule purporting to permit a corporation to appear in person with the Court’s consent would be ultra vires. ... It can only be represented by an agent who is a distinct person than the corporation. … By adopting detailed provisions dealing with representation in the Act, the legislator limited the TCC’s implied power to control who may represent the corporation in their courtroom, especially in proceedings subject to the General Procedure. … [T]he common law/civil law concept that a corporation cannot appear in person because of its very nature strongly suggest[s] that under section 17.1 [of the TCCA], a party who is a corporation must be represented by counsel as defined by subsection 17.1(2). ...

21 January 2021- 10:46pm MacDonald – Federal Court of Appeal finds that the Crown’s seeking an increased costs award was impermissible relitigation Email this Content After the taxpayer’s success in MacDonald in the Tax Court, he secured an enhanced costs award from the Tax Court based on a settlement offer he had made. ... Since the TCC’s enhanced cost order (under Rule 147(7)) was wholly contingent on the order it made in the underlying action, when that order was reversed, its Rule 147(7) order was rendered a nullity – there was nothing for the Crown to appeal. ... MacDonald, 2021 FCA 6 under General Concepts – Res Judicata. ...

7 July 2021- 10:56pm Wall – Federal Court of Appeal confirms that three successive sales of newly-constructed homes over a period of under 5 years were made in the course of a business or adventures Email this Content The taxpayer purchased three homes in Vancouver in succession between 2004 and 2009, demolished each one, constructed a new house and sold it less than two years after the purchase date. ... Wall’s “ex-post facto testimony regarding his intentions cannot overwhelm the manifestations of a different purpose objectively ascertainable from the record”. … Evidence contradicting the taxpayer’s arguments included: Each house was listed for sale before the occupancy permit was obtained. ... Summaries of Wall v The Queen, 2021 FCA 132 under ETA s. 123(1) – builder- (f), s. 191(5) and Sched. ...

8 July 2021- 11:57pm Libicz – Federal Court suggests that a clear representation made by CRA officials within the scope of their authority as to an administrative process they will follow is binding Email this Content Not surprisingly, Elliott J found that CRA was not bound to follow a procedure in its Collections Manual that, by the time it actually implemented the action that the taxpayers complained about (merely withdrawing a certificate of taxes owing that CRA had filed under ETA s. 316 rather than permanently canceling it), had been amended by a subsequently-issued internal directive. ... She stated: A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow: … Mavi, 2011 SCC 30 …. ...

11 August 2021- 10:54pm Vocan – Tax Court of Canada finds that supplies to insurers of injury assessment reports were not GST/HST exempted Email this Content Vocan supplied assessment reports to insurance companies or law firms regarding individuals injured in motor vehicle accidents. ... Vocan submitted that its facility was a health care facility, being “a facility … operated for the purpose of providing medical … care,” so that its supply of the reports was exempted under Sched. ...

29 August 2021- 11:01pm Rémillard – Federal Court finds that the open court principle ousted a taxpayer’s need for privacy Email this Content Pamel J granted the taxpayer’s application to exclude various items from the common evidentiary record that created a risk of identity theft, but did not make a confidentiality order regarding the taxpayer’s financial information and certain information regarding third parties. In finding that the taxpayer had not satisfied the first of the three conjunctive Sierra Club tests, namely, that “court openness poses a serious risk to an important public interest,” Pamel J stated: [The taxpayer’s] preference for discretion with respect to his affairs and his desire to remain out of the public spotlight are not an important public interests. … [T]here must be an element of an individual’s privacy concerns that elevates them to a public concern, beyond personal concerns and sensibilities (Sherman at para 54). ... Rémillard’s personal safety, an attack on his dignity, a risk of psychological harm or a risk to his professional reputation. … Regarding the related issue of tax secrecy, he stated: There is no indication that [the taxpayer’s] tax information requires different protection from the usual protection for all other tax records. ...

16 January 2022- 10:37pm Froehling – Federal Court finds that the taxpayer failed to demonstrate why his RRSP over-contribution was attributable to reasonable error Email this Content The taxpayer over-contributed to his RRSPs for the 2018 taxation year in December 2018 and, upon realizing his error in March of 2019, filed a return reporting the Part X.1 tax on his over-contribution (which was assessed largely as filed)- and then applied for waiver of the tax pursuant to s. 204.1(4). Aylen J noted that in Connolly “the applicant had provided little detail as to why he made the mistake that resulted in his over-contribution and did not appear to have made any inquiries, whether with his accountant, his bank or his employer, to confirm his RRSP contribution room … [so that] the Federal Court of Appeal concluded that his error likely could not be said to have been a reasonable one,” and found that she was faced with a similar situation here, stating: The onus was on the Applicant to ensure that he did not over-contribute to his RRSP and if there was any lack of clarity or understanding as [to] the contribution room available to him, the Applicant was expected to seek advice …. ...