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19 October 2023- 11:23pm Pier 1 Imports – Federal Court of Appeal confirms that there can be both a statutory appeal and an application for judicial review of the same CITT order Email this Content The Attorney General brought both an appeal pursuant to s. 68(1) of the Customs Act regarding alleged errors of law in an order of the Canadian International Trade Tribunal and an application for judicial review regarding the alleged unreasonableness of such order. In discussing the issue as to whether s. 18.5 of the Federal Courts Act precluded the judicial review application given the statutory appeal mechanism, Boivin JA adopted the finding in inter alia Best Buy (2021 FCA 161) that in such circumstances, “a complete bar to judicial review would be incompatible with the rule of law” and that both types of errors are reviewable: “errors of law are reviewable under the correctness standard via the statutory appeal mechanism in subsection 68(1) of the Customs Act, while errors of fact are reviewable under the reasonableness standard through an application for judicial review …”. ...

12 September 2016- 10:47pm Acornwood – UK Upper Tribunal softens a judicial rule that the income-producing purpose test should not track the actual use of the expenditure by the expenditure’s recipient Email this Content A UK tax shelter entailed the investors using borrowed money of 80 and their own funds of 20 to fund an LLP, which used 95 of this sum to purchase rights to a future stream of payments from a company (“Shamrock”) whose business it was to exploit IP. ... Summary of Acornwood LLP & Ors v. Revenue and Customs Commissioners, [2016] BTC 517, [2016] UKUT 0361 (Tax and Chancery Chamber) under s. 18(1)(a)- income-producing purpose. ...

7 March 2017- 12:51am Farm Credit Canada – Tax Court of Canada finds that “loan corporation” for GST/HST purposes has a broader meaning than its provincial regulatory meaning Email this Content A listed financial institution, whose definition includes a “person whose principal business is the lending of money,” will usually also be a selected listed financial institution (SLFI) if it has a cross-Canada business. ... In my view, if Parliament had intended such a result it would have added that specific condition to the legislation. … Neal Armstrong. ...

13 April 2018- 12:37am Stamatopoulos – Quebec Court of Appeal finds that the ARQ failed to establish that a named supplier to the taxpayer did not act as a supplier or intermediary Email this Content A taxpayer (Stamatopoulos) serviced clothing manufacturers by securing sewing services for clothes that then were delivered to the manufacturer. ... Stamatopoulos, 2018 QCCA 474 under Input Tax Credit Information (GST/HST) Regulations, s. 2 – intermediary. ...

20 August 2019- 1:07am Brandimarte – Federal Court reviews CRA decision to partly waive interest that accrued over 35 years, and rejects comparison to those with complete interest relief Email this Content Taxpayers who were the innocent (albeit, perhaps aggressive) victims of a tax fraud, i.e., purported partnerships giving rise to large reported losses in the mid-1980s where, in fact, the partnerships were non-existent, ultimately had their Tax Court actions decided against them in 2014, and sought relief in 2014, or 10 years previously, for accrued interest. ... In Ludco … the Federal Court of Appeal held that evidence about other taxpayers who had benefited from an interest deduction for loans obtained in circumstances identical to those of the appellants was inadmissible…. ...

1 February 2022- 11:17pm Wyrstiuk – Tax Court of Canada finds that failure to recognize that a termination payment was not earned income gave rise to RRSP over-contribution tax Email this Content A lump sum of $165,000 received by the taxpayer in 2014 as a negotiated payment for the termination of his employment was found, in light of Atkins, to constitute a retiring allowance rather than income from employment. ...

12 May 2022- 10:17pm National R&D – Federal Court of Appeal confirms the need for use of the scientific method in SR&ED Email this Content Rennie JA confirmed that, as set out in Northwest Hydraulic, the scientific method was required to be followed in order for work to qualify as SR&ED. ...

5 September 2019- 11:39pm Silver Wheaton – Tax Court of Canada denies class action plaintiffs access to documents provided on discovery in transfer pricing dispute Email this Content Silver Wheaton (renamed Wheaton Precious Metals) was assessed in 2015 for Cdn.$353M respecting CRA’s position that, pursuant to s. 247(2), Wheaton’s income should be increased by an amount equal to substantially all of the income earned outside Canada under precious metal streaming contracts by its Caymans subsidiaries for the 2005 to 2010 taxation years. ...

In finding that the rent prepayments were capital expenditures, so that such deduction was not permitted, Jagot J stated: [T]he payments … were … a one off, lump sum, non-refundable payment made to secure an enduring advantage (the right to pay the lesser percentage rent) for the term of the [leases] and most likely the term of any renewal of the [leases]. ... As a matter of substance the payments, although called the prepayment of rent, did not involve the payment of rent at all. … … What [the trust] acquired through the payments was a business with a different structure, a business in which the percentage rent payable was permanently reduced …. … The non-refundable nature of the payments suggests that they were not made to secure the right to occupy the premises under the lease and, rather, were capital in nature. ... Summary of Mussalli v Commissioner of Taxation [2020] FCA 544 under s. 18(1)(b) – Capital expenditure v. expense – Contract purchases or prepayments. ...

30 May 2021- 11:26pm Mussalli – Full Federal Court of Australia finds that “rent prepayments” made by new franchisees to reduce percentage rent payments on leases were capital expenditures Email this Content Two Australian trusts that were to be the franchisees for seven McDonald’s restaurants agreed, at the same time as they agreed to enter into leases of the premises for base rents plus sales-based percentage rents, to make a lump sum “prepayment of rent” so as to reduce the percentage rent payable. ... In finding that the rent prepayments were capital expenditures, so that such deduction was not permitted, Mckerracher and Stewart JJ stated: There is no principle that a payment that substitutes for future revenue outgoings or which compensates for them, or which more accurately in this case obviates or removes the need for them, must itself be revenue. … [I]f the term … of the lease was irrelevant to the method of calculation of the payment [as was the case here], then any argument that the payment was in truth … a computation of prepayment of rent is extremely difficult to mount. … The taxpayer has, in effect, purchased the right to have the better lease with the lower rent. … Neal Armstrong. Summary of Mussalli v Commissioner of Taxation [2021] FCAFC 71 under s. 18(1)(b) – Capital expenditure v. expense – Contract purchases or prepayments. ...