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16 August 2020- 11:41pm MMV Capital – Tax Court of Canada finds no GAAR abuse in acquiring an approximate 100% interest in a Lossco but with no change of de jure control Email this Content A venture capital corporation (MMV Finance) acquired 49% of the voting common shares of a corporation (MMV) in interim bankruptcy proceedings and subscribed $1,000 for a large number of non-voting common shares giving it over 99.9% of all the common share equity. ... Bocock J did not consider it to be a GAAR abuse for MMV to deduct its ample losses from the income generated by the loan portfolio, stating: Parliament … deliberately kept the reference to de jure control in 111(5) instead of adopting a de facto standard. … Evidence was not presented to show that the board did not have the actual authority to make material decisions on behalf of MMV. … The presence of the longstanding, bright-line test of de jure control bears … witness to the rejection of applying the GAAR in the circumstances of this appeal as regards subsection 111(5). ...

The relevant QSTA provisions, which were broadly similar in this regard to ETA ss. 225(1) – A(a), 228(2) and 222(1), required that a person receiving payment of a policy premium collect the tax thereon as agent for the Minister and remit such tax to the Minister. ... In going on to confirm the imposition of penalties on the taxpayers pursuant to the Tax Administration Act (generally calculated as 15% of the amounts they had remitted one month late), the Court stated: The defence of due diligence allows for the avoidance of administrative penalties imposed by a statute where an error of fact is made in good faith, but not where there is an error of law. … … To allow the taxpayer to escape the consequences of failing to meet its obligations by proposing a different interpretation of the legislative provisions would open a loophole that is difficult to reconcile with [the self-assessment] principle. ... Assurances générales Desjardins Inc., 2022 QCCA 57 under ETA s. 225(1) – A(a) and ITA s. 227(8)(a). ...

16 May 2022- 11:17pm Jefferson – Federal Court of Appeal indicates that a taxpayer had not “demolished” the Minister’s assumption where it is demonstrated to be somewhat incorrect Email this Content The taxpayer relied on a statement in Hickman that the “initial onus of ‘demolishing’ the Minister’s exact assumptions is met where the appellant makes out at least a prima facie case.” ... In rejecting this position, Monaghan JA stated that the taxpayer “places far too much emphasis on the word ‘exact’ and gives insufficient weight to the word ‘demolish’ in … Hickman. ” and further stated that “establishing some consideration for the cheques is not sufficient to demolish the Minister’s assumption,” noting in this regard that the “purpose of pleading the assumption is to provide the appellant with notice of the case the appellant has to meet” and here, the taxpayer knew that, in the context of a s. 160 assessment, he needed to establish that he had provided fair market consideration for the cheques, “not merely some consideration.” ... Canada, 2022 FCA 81 under General Concepts – Onus. ...

13 June 2022- 11:17pm CFI Funding Trust – Tax Court of Canada finds that GST/HST supporting documentation can be originated by the recipient and be in electronic form Email this Content A securitization trust (“CFI”) used a concurrent lease structure under which it became the concurrent (head) lessee of automobiles from automobile dealer and sublessor of the automobiles to the dealership customers, and financed the automobile dealers by prepaying rents under the head leases. Before finding that CFI had satisfied the documentary requirements for claiming ITCs for the HST on the rent prepayments, and in rejecting the Crown position that various CFI spreadsheets did not satisfy its alleged requirement that “a supporting document … must originate from or be signed by the [supplier]”, Hogan J stated: [T]he broad term “form” was used in subsection 169(4) of the Act and section 2 of the Regulations because Parliament was mindful of the benefits of paperless record keeping. … [I]nformation stored on a registrant’s computer server qualifies as supporting documentation. … [T]he Regulations do not set out a general requirement for the supporting documentation to be issued or signed by the supplier. ... The Queen, 2022 TCC 60 under Input Tax Credit Information (GST/HST) Regulations – supporting documentation. ...

19 June 2022- 11:12pm Triskelion – Tax Court of Canada leaves open the argument that days cannot be counted twice under the 183-day test for a services PE under the Canada-US Treaty Email this Content A U.S. ... Tax Treaty, which referenced a test that “the services are provided in [Canada] for an aggregate of 183 days or more in any twelve-month period with respect to the [Canadian project]” – so that there was a services PE based on the taxpayer’s Canadian services provided during the 12-month period ending in March 2016. ... The Queen, 2022 TCC 63 under Treaties – Income Tax Conventions – Art. 5. ...

25 September 2022- 11:17pm Deegan – Federal Court of Appeal confirms that FATCA-required disclosures do not constitute an unreasonable seizure contrary to the Charter Email this Content Woods JA confirmed the rejection by the Federal Court of the position of two American citizens, who had had no significant connection with the U.S. since early childhood, that the information-reporting requirements in ITA Part XVIII (the “Impugned Provisions”) resulted in the unreasonable seizure of financial information belonging to U.S. persons in Canada, contrary to s. 8 of the Charter. She stated: The Impugned Provisions … are similar to information automatically provided to the CRA for regulatory purposes (e.g., T4s by employers, T5s by financial institutions, and taxpayers’ annual disclosure of foreign holdings). … It is difficult to see how a seizure contemplated by the Impugned Provisions significantly intrudes into privacy interests, as the appellants appear to suggest. Accordingly, I see no reason in this case to revisit the comment in Jarvis that the entire ITA is a regulatory statute. … Quite simply, the Impugned Provisions are an example of international cooperation in the administration of income tax laws. … Neal Armstrong. ...

29 November 2022- 11:00pm Brown – Federal Court of Appeal finds that the higher Stewart hurdle for an activity with a “personal element” is not engaged merely by a personal reason for the activity Email this Content The taxpayer (Mr. ... It is possible to find a personal reason why any person is carrying on a particular activity. … Neal Armstrong. ... Canada, 2022 FCA 200 under s. 3(a) – business source. ...

31 August 2023- 11:01pm Whitecap Energy – Alberta Court of King’s Bench finds that the Attorney General could revive a dissolved corporation for the purpose of making a s. 160 assessment of the shareholder Email this Content An Alberta corporation (Whitecap) had been wound up into its sole shareholder. ... Principally at issue was whether the Attorney General had standing as an “interested party,” which was relevantly defined to “mean … a creditor of a dissolved corporation … or …a person designated as an interested person by an order of the Court.” In finding that the Attorney General was not a “creditor,” Schlosser J stated: Taxpayers remain liable for tax when income is earned …. notwithstanding that no return is filed. ...

Alcindor JCQ accepted that the transfer was made to them for the purpose of obtaining mortgage financing on the unit and that they acquired the unit as nominees for 9154-6093 (so that no QST was payable), stating: [D]espite the assignment, 9154-6093 rented Unit 54 to third parties, declared the income from such rentals, and collected the taxes and remitted them to Revenu Québec. … Just before the sale of the Unit in October 2019 [the shareholders] retroceded the building to 9154-6093, which collected and remitted the GST and QST [on the sale] … to Revenu Québec. She further stated that in light of this reporting of the 2019 sale: [A]llowing Revenu Québec to recover QST on the 2009 transaction means that 9154-6093 is remitting QST twice on the same housing unit. … [T]his runs counter to both Revenu Québec's role and tax policy in this regard. ... Agence du revenu du Québec, 2023 QCCQ 10241 under General Concepts – Ownership. ...

14 April 2024- 10:11pm Kute Knit – Quebec Court of Appeal confirms denial of supervisory SR&ED salary claims under Reg. 2900(2)(b) which were asserted rather than proven Email this Content The taxpayer, which was acknowledged by the ARQ to be engaged in SR&ED, had claimed percentages (ranging from 15% to 75%) of the salaries incurred during its 2011 and 2012 taxation years for various management and supervisory employees as being the times that they were directly supervising the prosecution of SR&ED within the meaning of the Quebec equivalent of Reg. 2900(2)(b). ... Other than this table, the appellant did not file supporting documents regarding the percentages set out therein, be they time sheets, SR&ED progress reports, correspondence, minutes of meetings, internal notes or emails related to these tasks, nor did it … call any of the employees from these two groups as witnesses to support these percentages …. The Court found no reviewable error in the finding below that the taxpayer had thus failed to “demolish” the ARQ assessments by making out a prima facie case, that the ARQ’s premise — of the taxpayer not having shown that the reported portions of each employee’s salary could reasonably be attributed to the prosecution of SR&ED — was false. ...