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7 March 2021- 11:10pm Engineering Analysis Centre – Supreme Court of India finds that consideration for software paid by Indian resellers was not royalties for Canadian (and other) Treaty purposes Email this Content The OECD Commentary on the royalty article (Art. 12) states i nter alia that “where a distributor makes payments to acquire and distribute software copies (without the right to reproduce the software),” such payments generally “would be dealt with as business profits in accordance with Article 7” rather than as royalties under Art. 12 – and that this would be so “regardless of whether the copies being distributed are delivered on tangible media or are distributed electronically (without the distributor having the right to reproduce the software).” ... The Commissioner of Income Tax & Anr., Civil Appeal Nos. 8733-8734 of 2018, 2 March 2021(Supreme Court of India) under Treaties – Income Tax Conventions – Art. 12. ...

27 April 2021- 10:46pm Bernardin – Quebec Court of Appeal finds that interest that arose prior to a class action judgment becoming res judicata was non-taxable Email this Content An individual, by virtue of being part of a group of class action claimants, was awarded damages in 2004 of $1,200 for each of the seven winter seasons in which she had endured snowmobile noise. ... It is sufficient (and here I paraphrase Rand J. in … Farm Security …) that there be a use or retention by one person of a sum of money belonging to or owed to another. This, in my view, is a debt that is certain and liquidated. … The fact that [the Quebec Attorney General] was unaware of the extent of the members' claims at the time is irrelevant. … [T]he determination of whether an amount received or receivable is interest income must be made from the perspective of the taxpayer. ...

28 February 2017- 11:10pm Associated Newspapers – Court of Appeal of England and Wales finds that purchases made for promotional free on-supplies were part of the VAT-creditable overheads of a taxable business Email this Content A UK newspaper (ANL) paid VAT on its purchase of vouchers from Marks & Spencer and an intermediary, which it then provided free to those readers subscribing to its Sunday editions for the promotional period. ... Summary of Associated Newspapers Ltd v HM Revenue & Customs [2017] EWCA Civ 54 under ETA s. 141.02(1) – procurative extent. ...

28 April 2019- 10:52pm Rochefort – Court of Quebec finds that a quick flip of a development property occurred on capital account Email this Content The taxpayer entered into an agreement to purchase a restaurant building and related land in Montreal with a view to tearing down the building and erecting a mixed-use rental project (comprising 44 residential and 6 retail units) – and then, three months later, accepted an offer from the construction company “Groupe Legacé”) which she had asked to bid on doing the construction work, to purchase the property for approximately twice her purchase price. ... Agence du revenu du Québec, 500-80-031868-152, 18 April 2019 (Court of Quebec) under s. 9 – capital gain v. profit – real estate. ...

18 July 2019- 11:52pm Vega International – ECJ finds that a parent’s funding of fuel costs of subsidiaries was a provision of credit rather than a purchase and on-sale of the fuel Email this Content The parent (Vega International) of a transport group of companies provided fuel cards to its subsidiaries (e.g., Vega Poland) which drivers used to purchase fuel, with Vega International charging Vega Poland on a monthly basis for the cost of the fuel plus a 2% surcharge. ... Summary of Vega International Car Transport and Logistic — Trading GmbH v. Dyrektor Izby Skarbowej w Warszawie, ECLI:EU:C:2019:412 (European Court of Justice, 8 th Chamber) under ETA s. 1223(1) – financial service – (g). ...

24 November 2019- 11:55pm Cristofaro – Court of Quebec finds that a resale of a house by a renovator within one year gave rise to a capital gain Email this Content One of the taxpayers and a friend purchased a Montreal house for $1,050,000 with the intention of renovating it and renting it out. ... Stephan changed after the purchase, this is attributable to the skyrocketing renovation costs and the difficulty in finding a tenant, and not because they were motivated by realizing a profit through a quick flip. … The evidence does not establish that in the minds of Jaysen Cristofaro and Mr. ... Agence du revenu du Québec, 2019 QCCQ 6242 under s. 9 – capital gain v. profit – real estate. ...

24 May 2020- 11:52pm Al Saunders Contracting – Federal Court of Appeal finds that s. 6(1)(b)(vii) precludes bifurcation of an unreasonable allowance into a reasonable and unreasonable portion Email this Content The Tax Court found that some of the travel allowances paid to employees of the taxpayer were reasonable and, thus, properly excluded from income under s. 6(1)(b)(vii), but that other of the allowances were unreasonable in amount – and excluded the reasonable portion from income. In finding that the Tax Court had thus erred in its latter findings by severing travel allowances into two parts: a portion that was unreasonable; and a portion that was reasonable- so that the reasonable portion was excluded, Dawson JA stated: I take from the grammatical and ordinary sense of the language of subparagraph 6(1)(b)(vii) that … [a]llowances that exceed what is reasonable are to be included in their entirety in income. ... Al Saunders Contracting & Consulting Inc. 2020 FCA 89 under s. 6(1)(b)(vii) and Statutory Interpretation- Hansard, explanatory notes etc. ...

9 August 2022- 11:16pm Sharp – Federal Court of Appeal finds that the taxpayer failed to allege what, if any, criminal investigations of the taxpayer were assisted by information generated by s. 231.2 demands Email this Content The respondent taxpayer alleged that s. 231.2 requirement letters issued to him were invalid because they were issued for the predominant purpose of furthering criminal investigations contrary to Jarvis. In finding that the taxpayer’s statement of claim should be struck, Woods JA applied the principle that even “if … a party is a stranger to a transaction, the transaction must still be described with sufficient detail that the other party can identify it” and noted, regarding the taxpayer’s allegation that the Audit Division shared information gathered from the requirement letters with criminal investigators, that the “pleading does not link the alleged sharing of information to any particular criminal investigation.” Furthermore, although a general statement of the Minister suggested “that audits may precede criminal investigations … this is permitted in Jarvis. ” However, the taxpayer was given leave to file an amended statement of claim on the condition that “the pleading identify with particularity the facts giving rise to the cause of action.” ...

23 October 2023- 11:43pm BCM Cayman – Court of Appeal of England and Wales confirms that a two-tier partnership structure can be legally respected as such if the upper-tier partnership is an LP Email this Content The taxpayer (“Cayman Ltd.”) was a Cayman company which was the general partner of a Cayman LP (“Cayman LP”) which, in turn, had a 19% interest in a UK LLP. ... In finding that Fyled could not be considered to be carrying on business in common with the named partners of the UK LLP and, thus, was not a member of the UK LLP, Whipple LJ stated: Cayman LP's business was carried on by its general partner (Cayman Ltd) and … the limited partners (including Fyled) were prohibited by Cayman law from taking part in Cayman LP's business …. ... Summaries of BCM Cayman LP & Anor v Commissioners for His Majesty's Revenue and Customs [2023] EWCA Civ 1179 under s. 102(2) and s. 248(1)- corporation. ...

Solo Capital – UK Supreme Court confirms that the revenue rule does not apply to fictitious tax refund claims made by a non-taxpayer Email this Content The Danish Customs and Tax Divisions (“SKAT”) sued in an English civil court to recover £1.44 billion which it had paid based on allegedly fraudulent claims for refunds of Danish dividend withholding tax – SKAT alleged that most of the appellants (“Solo Capital”) had fraudulently misrepresented that they, as shareholders of Danish companies, had been subject to withholding at a rate in excess of the Treaty-reduced rate on dividends when, in fact, they never had held any shares in any of the relevant Danish companies. ... Summary of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40 under Statutory Interpretation – Revenue Rule. ...