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25 June 2023- 11:31pm RBC – English Court of Appeal finds that an oil and gas royalty is not income from immovable property under the Canada-U.K. ... She concluded: … RBC does not hold, and indeed has never held, an interest in the Buchan field. ... Summaries of Royal Bank of Canada v Commissioners for His Majesty's Revenue and Customs [2023] EWCA Civ 695 under Treaties – Income Tax Conventions – Art. 6, Art. 12. ...

1 November 2018- 11:26pm Satyam – Australian Full Court finds that a Treaty can impose tax Email this Content The Indian taxpayer (Satyam) argued unsuccessfully before the Full Federal Court of Australia “that tax treaties are, and can only be, exclusively relieving: that is, they are only ever ‘shields not swords’ and not the grant of a standalone taxing power and independent imposition of taxation.” ... Summary of Satyam Computer Services Limited v Commissioner of Taxation [2018] FCAFC 172 under Treaties – Income Tax Conventions – Art. 24. ...

20 October 2020- 11:52pm Vincent – Court of Quebec imputes use of the firm’s Quebec establishments to a “silent” partner having departed from KPMG Canada to France in ousting a Quebec-France Treaty exemption Email this Content In May 2012, a Quebec-resident lawyer, who theretofore had been a partner of KPMG Canada, became a resident of France and started working at KPMG France. ... Agence du revenu du Québec, 2020 QCCQ 3605 under Treaties – Income Tax Conventions – Art. 7 and s. 96(1)(f). ...

Jet2.com – Court of Appeal of England and Wales applies dominant purpose test to determining whether privilege applies to emails sent to both lawyers and executives Email this Content Is an email protected by legal advice privilege (“LAP”) if it is sent by an executive to multiple recipients, including an in-house lawyer but most of whom are fellow executives? Hickinbottom LJ stated: In respect of a single, multi-addressee email sent simultaneously to various individuals for their advice/comments, including a lawyer for his input, the purpose(s) of the communication need to be identified. … If the dominant purpose of the communication is … to settle the instructions to the lawyer then … that communication will be covered by LAP. ... (on the Application of) [2020] EWCA Civ 35 under s. 232(1) – solicitor-client privilege. ...

. – Quebec Court of Appeal confirms that a cross-border repo was not an abuse of the s. 17 rule Email this Content The taxpayer (“KQI”), a Canadian operating subsidiary in the Kone multinational group, used group funds advanced to it by a group company (Kone Canada), in part as an interest-bearing loan, to purchase, for a cash purchase price of $394 million, cumulative preferred shares of a US affiliate (Kone USA) from the non-resident affiliated company (Kone BV) to which such shares had recently been issued as a stock dividend. ... After rejecting the sham argument, the Court also rejected the application of the Quebec GAAR, stating: One cannot ignore the fact that financing transactions that are not loans will not generate interest but may provide for other forms of return. … A repo with a reasonable return in the form of dividends does not defeat the OSP [object, spirit and purpose] of Section 127.6. … KQI is taking advantage of … a mismatch between the tax treatment of its income (the dividends from Kone US are not taxable because they are paid out of its exempt surplus) and its expense (the interest in pays to Kone Canada is deductible). … However, the mismatch arises from the Taxation Act and the policies underlying it …. ...

28 April 2019- 10:52pm Rochefort – Court of Quebec finds that a quick flip of a development property occurred on capital account Email this Content The taxpayer entered into an agreement to purchase a restaurant building and related land in Montreal with a view to tearing down the building and erecting a mixed-use rental project (comprising 44 residential and 6 retail units) – and then, three months later, accepted an offer from the construction company “Groupe Legacé”) which she had asked to bid on doing the construction work, to purchase the property for approximately twice her purchase price. ... Agence du revenu du Québec, 500-80-031868-152, 18 April 2019 (Court of Quebec) under s. 9 – capital gain v. profit – real estate. ...

24 November 2019- 11:55pm Cristofaro – Court of Quebec finds that a resale of a house by a renovator within one year gave rise to a capital gain Email this Content One of the taxpayers and a friend purchased a Montreal house for $1,050,000 with the intention of renovating it and renting it out. ... Stephan changed after the purchase, this is attributable to the skyrocketing renovation costs and the difficulty in finding a tenant, and not because they were motivated by realizing a profit through a quick flip. … The evidence does not establish that in the minds of Jaysen Cristofaro and Mr. ... Agence du revenu du Québec, 2019 QCCQ 6242 under s. 9 – capital gain v. profit – real estate. ...

6 September 2017- 10:56pm Aon – Tax Court finds that replacing a parking garage roof with one better designed to deal with a problem was currently deductible Email this Content The roof for an underground parking garage deteriorated much more quickly than expected since it also served as a platform for ground level traffic, which resulted in significant water and salt damage. ... In finding that the $4 million repair expense was currently deductible, Jorré J noted the engineering improvements (see also Shabro) but, at the end of the day, gave weight to the facts that the garage was an integral part of a larger asset (an apartment complex) and “there is no improvement in the functionality or profitability of the garage and … there is no reason to conclude that the work has had any significant effect in terms of increasing the value of [the complex] compared to its value with the garage in a good state of repairs.” ... The Queen under s. 18(1)(b) – capital expenditure v. expense – improvements v. repairs or running expense. ...

6 January 2020- 11:52pm Healius – Federal Court of Australia finds that lump sum payments made to lock-up doctors as customers for a 5-year period were currently deductible Email this Content A subsidiary (“Idameneo”) of an Australian public company that provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... At the end of the five year period, the doctor was free to go …” “the character of the outgoings was as a payment to win a customer” The above finding that a five-year agreement did not give rise to an enduring benefit is consistent with BP Australia, which has also been cited in Canada. ... Summary of Healius Ltd v Commissioner of Taxation [2019] FCA 2011 under s. 18(1)(b) – capital expenditure v. expense – contract purchases. ...

20 July 2020- 12:01am Immeubles Zamora – Quebec Court of Appeal confirms that an LP sold a seniors residence shortly after construction to an unsolicited purchaser on income account Email this Content Bouchard JCA agreed with the Court of Quebec that two taxpayers, who were each 10% limited partners of a limited partnership that constructed a seniors residence, as well as owning the general partner, realized, as to their 10% shares, gains on income account when, shortly after the facility opened its doors, one of them was approached by a business associate, who asked what was their price, and agreed to purchase for the price that was named. Bouchard JCA indicated this being an isolated transaction and their not being “flippers” was not decisive, the judge had not erred in noting the complete absence of any business plan or other documentary proof of their lack of motivating intention to sell and that “the judge did not commit a reviewable error … by holding that the appellants had a secondary intention to divest themselves of their project in the event of an interesting offer being made to them.” ... Agence du revenu du Québec, 2020 QCCA 894 under s. 9 – capital gain v. profit – real estate. ...