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Collins Family Trust v Canada (Attorney General), 2019 BCSC 1030, aff'd 2020 BCCA 196, rev'd 2022 SCC 26-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission Fairmont cast doubt on but did not overrule Pallen After noting that the applications before him for the rescission of transactions entailing reliance on an interpretation of s. 75(2) that was established by Sommerer to be incorrect – and that in Pallen “which concerned an almost identical set of facts … rescission was granted” (para. 3), Giaschi J stated (at para. 5): I agree with the submissions of the respondent that the decisions... in Fairmont and Jean Coutu have seriously undermined Pallen. ... [holding] that a tax plan similar to the ones before me (and therefore also similar to the plan in Pallen) constituted abusive tax avoidance and was subject to GAAR. … In Satoma the primary purpose was found by the trial judge to be to avoid payment of any tax…. ...

Attorney General of Canada, 2017 ABCA 393-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission cannot use general equitable jurisdiction to do an end run around the narrow (post- Fairmont) rectification doctrine A last-minute requirement of a lender (“ATB”) to the target corporation (“Krang Energy”) for ATBH’s loan to be repaid on closing resulted in the purchase price being reduced by $35M and that amount being lent by an affiliate of the buyer (a predecessor (“Viking Holdings”) to the appellant in this action) to Krang Energy to fund the loan repayment. ... The means that the parties utilized in pursuit of their goal of a tax-neutral transaction – and not the goal of tax neutrality – are the primary focus of a rectification application. ... There is no principled basis, in the guise of exercising our equitable jurisdiction, to pump theoretical steroids into the rectification doctrine and give it the strength or force that the Supreme Court of Canada recently and consistently has declined to do. … ...

Canada, 2017 FCA 39-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission foreign rectification order not dispositive The taxpayer’s Barbados and Cyprus subsidiaries paid amounts to the taxpayer in 2004, 2005 and 2006 as dividends and then, following CRA proposals to assess the dividends, obtained rectification orders from the applicable Barbados and Cyprus courts declaring that the amounts instead were loans to it (or otherwise gave rise to indebtedness). ... Moreover, since these foreign orders involve the appellant and its Foreign Affiliates and not the Minister, a third-party to the foreign proceedings, there is nothing to enforce against the Minister; homologation is therefore a non-issue. … However, Boivin JA further stated (at paras 19-20): I cannot agree … that pursuant to article 2822 C.c.Q. these foreign orders are dispositive and that the Minister has no choice under the ITA but to accept the dividends are actually loans because the orders from Barbados and Cyprus say so. ... These determinations are for the Tax Court judge to make, with a full evidentiary record at his or her disposal. … On this basis, he concluded that Lamarre ACJ should not have answered the Rule 58 question, and set aside her judgment and dismissed the Rule 58 motion before the Tax Court. ...

Canada (Attorney General), 2016 SCC 55, [2016] 2 S.C.R. 670-- summary under Rectification & Rescission Summary Under Tax Topics- General Concepts- Rectification & Rescission rectification must give effect to common intention at time The taxpayer (“PJC Canada”), a Quebec corporation, implemented a plan, to neutralize the effect of FX fluctuations on its investment in a U.S. subsidiary (“PJC USA”), that overlooked foreign accrual property income considerations – so that interest generated to PJC USA on a loan that it made back to PJC Canada was included in PJC Canada’s income. ... In the AES case, the mistake consisted of a miscalculation in the adjusted cost base (“ACB”) of the transferred shares ― the procedure agreed to by the parties required the issuance and delivery of a note for an amount precisely equal to the shares’ ACB. ... [T]here is a fundamental difference between a contract under which one of a party’s prestations ― necessary for obtaining the intended tax result ― is to issue and deliver a note in an objectively calculable amount equal to the ACB of transferred shares, and a contract under which there is no obligation addressing FAPI, and no prestations agreed on that would prevent its fiscal consequences. …. ...

Barker v Baxendale Walker Solicitors (a firm) & Anor, [2017] EWCA Civ 2056-- summary under Negligence, Fiduciary Duty and Fault Summary Under Tax Topics- General Concepts- Negligence, Fiduciary Duty and Fault tax solicitor was negligent in not advising of the risk of an alternative interpretation Mr Baxendale-Walker, the sole equity partner in a law firm specializing in advising on tax-avoidance schemes, charged the taxpayer (Mr Barker) a fee of £2.4 million in advising on a scheme which Mr Barker implemented with a view to avoiding capital gains tax and inheritance tax respecting his shares of a private company. ... Turning to the negligence issue and in setting the stage, Asplin LJ stated (at paras 59 and 61): …The question is whether in the light of all the circumstances no reasonably competent solicitor in the position of the Respondents would have failed to give the specific warning that there was a significant risk that the EBT arrangement would fail to be tax effective because of the post-death exclusion construction. … …[I]t is perfectly possible to be correct about the construction of a provision or, at least, not negligent in that regard, but nevertheless to be under a duty to point out the risks involved and to have been negligent in not having done so …. In allowing the appeal, Asplin LJ found (at para 71): … [T]here was a significant risk that the … arrangement would not work as a result of the post-death exclusion construction which was centrally important to its structure and the likelihood that the promised tax advantages would be delivered. ...

.), briefly aff'd 75 DTC 5076, [1975] CTC 112 (SCC)-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt post-dated cheque A post-dated cheque was payable for purposes of ss. 12(1)(l) and 76(1) on its date rather than the date of delivery. ...

Commissioner of Pay-roll Tax, [1984] BTC 8019 (PC)-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt indirect receipt of wages An argument was rejected to the effect that fees received by employees of a company were not wages because they were collected directly from clients of the company. ...

The Queen, 83 DTC 5388, [1983] CTC 363 (FCTD)-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt sending of cheque to sender's lawyers The sending of a cheque by the lender to (its) solicitors did not constitute the payment of a sum to the borrower. ...

The Queen, 2012 DTC 1106 [at at 3044], 2012 TCC 86-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt past services Margeson J. accepted (at para. 99) that employees to whom the taxpayer issued shares in payment of bonuses to them gave consideration equal to the full value of those share "on the basis of past unremunerated services rendered to the Appellant. ...

Ans, 83 DTC 5038, [1983] CTC 8 (FCTD)-- summary under Payment & Receipt Summary Under Tax Topics- General Concepts- Payment & Receipt receipt by set-off A company's shareholder was held to have received a bonus when the amount of the bonus payable by the company was credited against the balance outstanding on the loan by the company to the shareholder. ...