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14 December 2023- 11:29pm Husky Energy – Tax Court of Canada finds that a securities loan between residents of two Treaty countries eliminated access to Treaty benefits on the dividend payments Email this Content Before a Canadian public corporation (“Husky”) paid a dividend on its shares, two significant shareholders of Husky resident in Barbados (the “Barbcos”) transferred their shares under securities lending agreements to companies resident in Luxembourg with which they did not deal at arm’s length (the “Luxcos”). ... The King, 2023 TCC 167 under s. 212(2), Treaties – Income Tax Conventions – Art. 10, s. 245(1) – tax benefit, s. 245(4). ...

4 April 2018- 11:40pm Ahlul-Bayt Centre – Federal Court of Appeal refuses to grant an injunction deferring revocation of charitable registration Email this Content CRA indicated to an Ottawa Islamic school (the “Centre”) that it would revoke the Centre’s charitable registration after 30 days by publishing a notice of intention to revoke (based on serious non-compliance). ... He stated: The evidence that significant numbers of parents would withdraw their children from the school within one or two months is … neither clear nor compelling. … While the Centre asserts that “[t]he loss of tuition revenue and the reduction of the donor base for School related fundraising will make [the Centre] financially incapable of operating the School, leading to its closure,” it has not …provided its current budget or other supporting financial information. … Its financial statements for 2016 also show an excess of revenues over expenditures of $307,242. … Neal Armstrong. ...

Before reversing the decision below that the masters were Class 8(j) tangible capital property, and agreeing with the ARQ that they instead were eligible capital property (now Class 14.1 property), Schrager JA referenced s. 18 of the Copyright Act, which provided that “the maker of a sound recording has a copyright in the sound recording, consisting of the sole right to … [inter alia] reproduce it in any material form,” and then stated (at para. 31): There are intangible rights … as described in section 18 … which were purchased in association with the physical tapes. ... The value is found in what is recorded on the plastic or cellulose and what Respondent can do with it – i.e. make and sell good quality copies …. ... Unidisc Musique Inc., 2021 QCCA 393 under Class 14.1, s. 152(8) and General Concepts – Onus. ...

10 January 2017- 11:47pm Igloo Vikski – Supreme Court of Canada finds that an “includes” definition could reasonably be viewed as being limited by the listed items Email this Content A decision of the Supreme Court dealt with characterizing the precise nature of the hierarchy of Rule 1 of the General Rules for the Interpretation of the Harmonized System (scheduled to the Customs Tariff Act) over Rule 2(b). ... In her dissenting reasons, Côté J pointed out that the approach of the CITT – that resort can only be made to Rule 2(b) if the goods in question (here, goalie gloves) could first be considered to be described in more than one heading – did not work because (for reasons relating the World Harmonized System Explanatory Notes) they fell within neither mooted heading (gloves, mittens or mitts – or other articles of plastics) – whereas this problem did not arise if the two Rules were applied in a somewhat more integrated manner. ... Igloo Vikski Inc., 2016 SCC 38 under Customs Tariff Act- General Rules for the Interpretation of the Harmonized System – Rule 2(b), and Statutory Interpretation – Interpretation/Definition Provisions. ...

9 May 2018- 11:12pm Barr – Tax Court of Canada finds that broker fees paid to locate purchasers of a private company were HST-taxable Email this Content The sole individual shareholder retained two brokers for the sale of his company or its assets. ... They did not undertake to find a purchaser for the shares as contrasted to the assets – and, in fact, when they found the ultimate purchaser, that purchaser initially made an offer for the assets (at which point the brokers dropped out of the picture) and, only later, was a share sale negotiated. ... The Queen, 2018 TCC 86 under ETA s. 123(1) – financial service – para. ...

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. ...

5 August 2020- 11:47pm Samsung Heavy Industries – Supreme Court of India finds that a Mumbai liaison office for a domestic construction project was not a PE Email this Content Samsung, a resident of South Korea, was a member of a consortium for fabricating and installing offshore drilling plaforms at an oil development off the west coast of India of an India oil company (“ONGC”). ... Also… the Mumbai Project Office … would fall within Article 5(4)(e) of the DTAA, inasmuch as the office is solely an auxiliary office, meant to act as a liaison office between the Assessee and ONGC. ... Samsung Heavy Industries Co Ltd (Supreme Court) CIVIL APPEAL NO. 12183 of 2016 under Treaties – Income Tax Conventions – Art. 5. ...

28 September 2020- 11:11pm Pike – Federal Court of Australia, Full Court finds that an individual had his centre of vital interest where he was employed, rather than where he had his greater personal ties Email this Content Unusually, the tiebreaker rule for individuals in the Australia-Thailand Treaty applied the test of the country of the individual’s habitual abode second, and the country “with which the person’s personal and economic relations are the closer” third, rather than in the reverse order. ... The Court confirmed the primary judge’s conclusion that Mr Pike had a habitual abode in both countries, stating inter alia that “there is no warrant … for imputing that the habitual abode of a person is the place where the individual has spent more days.” ... Summary of Commissioner of Taxation v Pike [2020] FCAFC 158 under Treaties – Income Tax Conventions – Art. 4. ...

6 September 2017- 12:40am Gillen – Tax Court of Canada finds that property was not used in a business for s. 110.6(14)(f)(ii) purposes when it was beneficially acquired and dropped-down on the same day Email this Content The availability of the enhanced capital gains exemption to a group of taxpayers depended on the proposition that a newly-formed limited partnership had used, in a Canadian active business, applications to the Saskatchewan government for potash exploitation rights before it transferred such property to a newly-incorporated corporation (“Devonian”), whose shares were sold a number of months later. ... The Queen, 2017 TCC 163 under s. 110.6(14)(f)(ii), General Concepts – Ownership, General Concepts – Effective Date. ...

25 April 2018- 12:13am DaSilva – Tax Court of Canada accepts the taxpayer’s testimony that she did not receive a notice of assessment over a CRA affidavit to the contrary Email this Content Where a taxpayer alleges that she did not receive a notice of assessment, ETA s. 335(6) provides that an affidavit of a CRA official in charge of the appropriate records and stating that “an examination of the records shows that a notice of assessment was mailed … to a person … is evidence of [such] statement….” ...