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22 January 2019- 12:17am BH Parkway – Tax Court of Canada finds that a statutory penalty received by a landlord from a defaulted tenant was exempt from HST – and that a Mercedes SUV was not capped at $30K Email this Content A tenant (Trillium College) of a commercial landlord (BH Parkway) vacated the premises in breach of the terms of the lease. ... On this basis, it was not an “automobile,” whose ITA definition (applicable also for ETA purposes), excluded a “van or pick-up truck, or a similar vehicle” (interpreted by CRA to include an SUV) “the use of which … is all or substantially all for the transportation of goods, equipment or passengers in the course of gaining or producing income.” ...

24 January 2022- 11:21pm Robillard Estate – Tax Court of Canada finds that MacDonald established that s. 84(2) applied to a speedo pipeline – but doubts MacDonald’s correctness Email this Content An estate engaged in accelerated pipeline transactions in which it transferred shares (stepped up under s. 70(5)) of a portfolio company (“Holdco”) to a Newco in consideration for a note, with Holdco being wound up into Newco a day later – and with the note being repaid by Newco to the estate about three weeks later. ...

6 January 2019- 11:31pm Ihama-Anthony – Tax Court of Canada indicates that an objection can be made after the proposal letter and before the notice of reassessment – but must state “I object” Email this Content Sommerfeldt J found that a fax sent by the taxpayer to CRA could have qualified as notices of objection even though it may have been sent before the issuance of the notices of reassessment in question, stating: Like Justice Woods in Persaud, I am of the view that a notice of objection prepared in response to a proposal letter, which informs a taxpayer that a reassessment is about to be issued, may, if validly served on a Chief of Appeals, constitute a valid notice of objection in respect of the reassessment when it is subsequently issued. ...

27 March 2025- 10:03am 3308367 Canada – Court of Quebec confirms that a CBCA corporation can be assessed within 2 years of its dissolution – or thereafter, if revived by the ARQ or CRA Email this Content The ARQ assessed the taxpayer within two years of the taxpayer’s dissolution pursuant to s. 210(3) of the CBCA. ...

23 August 2023- 11:11pm Preston – Federal Court of Appeal finds that assumptions of mixed fact and law were not prejudicial to the taxpayer – and that an FMV assumption instead is factual Email this Content The Tax Court ordered that “assumptions of fact” pleaded by the Crown in its Reply should be struck out and moved to the reasons part of the Reply on the sole ground that they were in fact conclusions of mixed fact and law. ...

14 April 2025- 11:35pm Sura – Court of Quebec finds that the conversion of apartment buildings to condo units did not trigger a change of use – and that CAE rather than IT-218R would apply re change of use Email this Content In 1981, 10 individuals acquired as co-owners two adjoining rental buildings containing a total of 82 apartments. ...

In finding that the rent prepayments were capital expenditures, so that such deduction was not permitted, Jagot J stated: [T]he payments … were … a one off, lump sum, non-refundable payment made to secure an enduring advantage (the right to pay the lesser percentage rent) for the term of the [leases] and most likely the term of any renewal of the [leases]. ... As a matter of substance the payments, although called the prepayment of rent, did not involve the payment of rent at all. … … What [the trust] acquired through the payments was a business with a different structure, a business in which the percentage rent payable was permanently reduced …. … The non-refundable nature of the payments suggests that they were not made to secure the right to occupy the premises under the lease and, rather, were capital in nature. ... Summary of Mussalli v Commissioner of Taxation [2020] FCA 544 under s. 18(1)(b) – Capital expenditure v. expense – Contract purchases or prepayments. ...

In concluding that there had been no disposition of the debt, he found that of the “four fundamental terms of a debt obligation, i.e., the identity of the debtor, the principal amount, the amount of interest and the maturity date” identified in General Electric Capital, “ the only term that was significantly different in respect of the Post-Auction Debt … was the amount of interest.” ... The key passage appears to be the following: [S]ubparagraph (b)(i) of the [s. 248(1)] definition of “disposition” … states that “‘disposition’ of any property … includes … any transaction or event by which, … where the property is a … mortgage, … the property is in whole or in part redeemed, acquired or cancelled….” … Thus, by reason of the foreclosure and the judicial sale, the Mortgage was cancelled. ... The Queen 2021 TCC 33 under s. 18(1)(b) – capital loss v. loss – debt, s. 248(1) – disposition, s. 171(1), s. 9 – timing, and General Concepts – Evidence. ...

Ahmar – before Strong Forming had to cease operations. In affirming that Mr. Ahmar had not made out the due diligence defence to director liability for failure to remit, Mactavish JA stated: … Mr. Ahmar made the conscious decision to have Strong Forming defer payment of its HST debt, and to use these revenues to satisfy other obligations in the hopes of turning the company’s financial position around. … … Buckingham … state[ed] that the defence under section 323 “should not be used to encourage such failures by allowing a due diligence defence for directors who finance the activities of their corporation with Crown monies on the expectation that the failures to remit could eventually be cured”…. ...

3 September 2019- 11:53pm Yellow Point – Tax Court of Canada finds that an ecological gift was made in the year before it was certified as such Email this Content A taxpayer, who donated an interest in ecologically sensitive land to two qualified donees in 2008, unsuccessfully argued that the gift was not made until 2009 for purposes of computing the five-year (now 10-year) carryforward period described in s. 110.1(1)(d)(iii), because it was not until 2009 that he received certification from the Minister of the Environment as to the lands’ ecologically sensitive nature. Visser, J stated: [A] gift has been made … when a donor legally effects a voluntary transfer of property to a donee …. … [T]he certificates are necessary to claim a deduction under paragraph 110.1(1)(d) … but not to determine if a gift of land has been “made” for the purpose of paragraph 110.1(1)(d). ...