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20 January 2020- 12:00am Morris – Court of Quebec finds that disclosure of part of a legal opinion in an audit report was not a waiver of privilege Email this Content The taxpayer, who faced tax evasion charges, argued that there had been waiver of the privilege attached to a legal opinion prepared by a notary working for the ARQ when part of that opinion was included in an audit report that had been provided to him. ... In finding that there had been no such waiver, so that the opinion continued to be protected by the privilege, Asselin JCQ stated: Only the client can waive it. … [T]he disclosure of part of the legal opinion does not constitute an implied waiver of the right to legal professional privilege. … [T]here is no evidence that the auditor … was authorized, in the course of her duties, to disclose it in whole or in part. ... Morris, 2019 QCCQ 7635 under s. 232(1) – solicitor-client privilege and Charter – s. 7. ...

Art. 23 of the China- New Zealand Double Taxation Agreement provided in relevant part that “Chinese tax paid … in respect of income derived by a resident of New Zealand from sources in the [PRC] … shall be allowed as a credit against New Zealand tax payable in respect of that income,” and that for such purposes, such Chinese tax “shall be deemed to include any amount which would have been payable as Chinese tax for any year but for an exemption from, or reduction of tax granted for that year … under [specified] provisions of Chinese law.” ... Lin, [2018] NZCA 38 under Treaties – Income Tax Conventions – Art. 24 and of Brian J. Arnold, “The Relationship between Controlled Foreign Corporation Rules and Tax Sparing Provisions in Tax Treaties: A New Zealand Case,” Bulletin for International Taxation July 2018, p. 430 under Treaties – Income Tax Conventions – Art. 24. ...

In this regard, Gagnon J first noted: [I]f one party is enriched and the other impoverished by the same amount, it will be possible to conclude that the party who became richer did not offer equivalent consideration …. ... This case suggests that the CRA view-- that a trust, which distributes property to a non-resident in satisfaction of a capital interest in the trust which is taxable Canadian property, will be liable under s. 116(5) absent withholding or obtaining a s. 116 certificate (see, e.g., 2011-0399501E5) – may be incorrect where the trust is a discretionary trust. ... The King, 2024 CCI 93 under s. 128.1(4)(b), s. 160(1)(e) and General Concepts – FMV – Other. ...

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. ...

7 April 2025- 11:23pm Total Energy – Federal Court of Appeal confirms that the use of losses of an insolvent public company by a SIFT trust was an abuse of s. 111(5) Email this Content In September 2007, a company (“Nexia”), which traded in loss companies, acquired all of non-voting common shares of an insolvent public corporation (“Biomerge”) (representing 80% of its equity) and 45% of its voting common shares. ... It was also immaterial that s. 256(7)(c)(i) (dealing specifically with a transaction of this type) was added only subsequently (“ Deans Knight … did not look at other provisions enacted after s. 111(5) in order to determine the object, spirit, and purpose of s. 111(5).” ...

19 January 2021- 11:06pm Motter – Quebec Court of Appeal finds that a purported “tenant inducement payment” was a capital expenditure Email this Content An individual in the business of constructing and renting commercial real estate, entered into a lease agreement with Téléglobe respecting a building which he was to construct, that provided Téléglobe with “an initial Improvement Allowance” of $25.00 per square foot (or $2M). ... As in … Développement Iberville … the appellant did not establish that the work was related to the specific needs of Teleglobe and, therefore, was of no use to other tenants, and that it did not add any value to the building. … [T]he form of the expenditure (…one-off), its effect (an enduring benefit) and the purpose or rationale underlying it, all incline to the capital nature of the payment …. ... Agence du revenu du Québec, No. 500-09-027452-184 (500-80-029040-145) (Quebec Court of Appeal, 19 January 2021) under s. 18(1)(b) – improvements v. repairs/running expense. ...

26 February 2020- 11:34pm Grands Palais – Court of Quebec finds that consideration for parking spots was part of the consideration for (condo) residential complexes for new housing rebate purposes Email this Content The Quebec new housing rebate is essentially the same as the ETA equivalent, except that entitlement to it is lost at a lower dollar level of total consideration for the “residential complex” that is purchased. ... [A]lthough they constitute different cadastral lots … the interdependence and interconnection of the parking spaces to the residential units are such that they could not be considered, for the purposes of establishing the amount of the Rebate to which the purchasers were entitled, as separate components. ... Agence du revenu du Québec, 2020 QCCQ 281 under ETA s. 123(1) – residential complex – (b). ...

6 March 2022- 11:17pm Glenogle Energy – Federal Court decision effectively penalizes a taxpayer for filing s. 97(2) elections on a timely basis rather than late Email this Content In January 2015, the taxpayer transferred resource properties to a limited partnership that was wholly-owned by it, directly and indirectly. ... In dismissing the taxpayer’s application for judicial review, Aylen J stated: I am satisfied that the Applicant’s “explanation” was so devoid of particulars that it did not amount to an explanation at all. … The Applicant … failed to explain in any meaningful way why it would be just and equitable for the Minister [to grant the request]. … I am not satisfied that the Applicant has demonstrated any error by the Minister’s delegate in his finding that the amendment requests constituted an attempt to circumvent the successor rule stipulated in section 66.7 …. ...

5 December 2021- 10:39pm Loblaw – Supreme Court of Canada finds that a Barbados bank sub conducted its business of investing Loblaw cash principally with arm’s length persons Email this Content The taxpayer, an indirect wholly-owned subsidiary of the Loblaw public company, wholly-owned a Barbados subsidiary (Glenhuron), that was licensed in Barbados as an international bank and that used funds mostly derived from equity injections by the taxpayer predominantly to generate income from U.S. ... Regarding the alleged relevance of the parents’ corporate oversight as part of the conducting of Glenhuron’s business, “[f]undamentally, a corporation is separate from its shareholders” and its conducting its business “in accordance with policies adopted by the board of directors on behalf of the shareholders … does not change the fact that the corporation remains the party conducting business.” ... Loblaw Financial Holdings Inc, 2021 SCC 51 under s. 95(1) – investment business – para. ...

Benedict Catholic Secondary School Trust – Federal Court of Appeal finds that a taxpayer is precluded from changing previous CCA claims Email this Content The taxpayer, over the course of its 1997 to 2003 taxation years, claimed capital cost allowance and generated non-capital losses. ... In finding that such CCA claims could not be treated as having been revised, Webb JA indicated that the “administrative practice [in IC 84-1] is not binding on this Court, nor can it amend the Act, noted that “ Nassau Walnut … drew a distinction between an election and a designation” and found that “the comments in Nassau Walnut with respect to an election, and the inability of a taxpayer to change an election absent a specific provision in the Act permitting such a change, are applicable in this case.” ... Canada, 2022 FCA 125 under s. 13(21)- UCC – E. ...