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15 May 2019- 12:00am Exxonmobil Canada – Tax Court of Canada declines to impute notional income to an essential income-generating activity Email this Content A participant in the Hibernia joint venture treated its share of the costs of the initial well in one of the oil reservoirs as SR&ED on the grounds that the well provided experimental validation of the predictions made using an improved systematic and logical methodology (the “reservoir connectivity analysis,” or “RCA”) for evaluating how a reservoir is connected. ... Reg. 1204(3)(a) excluded “income … derived from transporting … petroleum” from production profits for resource allowance purposes. ... Westar – “the authority has established that 'derived from' is a term of wide import"). ...

17 July 2024- 11:32pm G E Financial Investments – English Court of Appeal finds that a deemed US resident was not a US treaty resident Email this Content A US company (“GEFI Inc.”) and UK company (“GEFI”) in the GE group formed a Delaware LP (“LP”) with GEFI Inc. as the 1% general partner and GEFI as the 99% limited partner. ... In concluding that GEFI was not so resident, Falk LJ stated: The US connections required by s.269B are limited to a) stapling of more than 50% by value of the foreign corporation's shares to those of a domestic corporation, and b) direct or indirect ownership as to 50% or more by US persons. … Neither [branch] requires any form of link between the company itself and the United States, whether a formal legal one (such as incorporation, the location of its registered office or similar) or a factual one (such as place of management). … In contrast, the criteria specified in Article 4(1) all describe legal or factual connections between the entity itself and the relevant Contracting State of a kind that may justify worldwide taxation. ... Summaries of Commissioners for His Majesty's Revenue and Customs v GE Financial Investments [2024] EWCA Civ 797 under Treaties – Income Tax Conventions – Art. 4, Art. 5. ...

6 June 2021- 10:34pm Brent Carlson Family Trust – Federal Court finds that CRA had been confused by the rectification jurisprudence in rejecting an amended s. 85(1) election Email this Content In implementing a plan to maximize the utilization by family members of the capital gains exemption (“CGE”) on the sale to an arm’s length purchaser of an operating company that was indirectly held by family trusts, the trusts engaged in a dirty s. 85(1) exchange of existing low-basis common shares of a subsidiary for new shares of that subsidiary that included Class F preferred shares, with a joint s. 85 election being filed at an agreed amount that resulted in recognition of a capital gain equaling the aggregate CGE available to the trust’s beneficiaries. ... Before setting aside and remitted to the Minister for redetermination, Walker J stated: … The Minister’s delegate … imports equitable requirements specific to rectification and rescission without acknowledging any difference in the remedies sought. … They requested only the amendment of the Original Elections, as contemplated in subsection 85(7.1). ...

25 September 2020- 12:07am Godcharles – Court of Quebec finds that a sale of goodwill occurred between parties acting in concert given the role of a dominant player Email this Content A retirement home was co-owned by eight individuals and operated by a corporation of which they were the shareholders. ... Agence du revenu du Québec, 2020 QCCQ 2219 under s. 251(1)(c) and General Concepts – fair market value – real estate. ...

Matco then identified a mutual fund management company which wanted to effect a public offering of shares of the taxpayer and use the proceeds (of $100M) for a new bond trading business to be carried on in the taxpayer – a transaction which then proceeded. ... In finding that the transactions (which he described, at para. 6, as “narrowly circumventing the text of s. 111(5)”) did not accord with the rationale of s. 111(5), so that the use of the tax attributes had been properly denied under s. 245(2), Rowe J stated: [T]he appellant was gutted of any vestiges from its prior corporate “life” and became an empty vessel with Tax Attributes. … Moreover, the shareholder base of the taxpayer underwent a fundamental shift throughout the transactions …. Matco achieved the functional equivalent of … an acquisition of [de jure] control through the Investment Agreement, while circumventing s. 111(5), because it used separate transactions to dismember the rights and benefits that would normally flow from being a controlling shareholder. ...

3 July 2018- 12:51am MacDonald – Federal Court of Appeal effectively affirms George Weston, and finds that the existence of a hedge does not turn on intention Email this Content An individual with a significant long-term holding in common shares of a public company (BNS) entered into a cash-settled forward which had the effect of establishing a short position against a portion of his BNS shareholding. ... He was aware of the hedging effect which the Forward Contract would have on the BNS shares …. ... MacD onald, 2018 FCA 128 under s. 9 – capital gain v. income – futures/forwards/hedges. ...

15 July 2021- 11:58pm 1455257 Ontario – Federal Court of Appeal notes that CRA cannot arbitrarily reject an s. 152(4)(b)(i) extension request and that s. 160 extends to post-transfer interest Email this Content The validity of a s. 160 assessment of the taxpayer turned in part on whether the affiliate from which the taxpayer had received a transfer of property in 2003 should be regarded as having had its taxable income for 2000 reduced by a portion of its non-capital loss for 2002 that the affiliate had not claimed because the taxpayer and the affiliate had not found out about that additional loss until 2011, when the taxpayer made an ATIP request following the s. 160 assessment of it. ... Noël C.J. also agreed with the Tax Court’s rejection of the taxpayer’s submission that given that the word “pour” used in the French version of s. 160(1)(e)(ii) was narrower than “in respect of” used in the English version, s. 160 did not extend to interest that had accrued on the tax payable subsequent to the 2003 transfer date, stating (at paras. 46-47): The phrase “in respect of” is broad and all encompassing … and the word “pour” in the French text can have a similarly broad meaning. … It can be seen that both texts can be read so as to capture interest that accrues on the transferor’s liability from the year of the transfer onwards. This aligns with the purpose of subsection 160(1) which is to allow for the collection of “the total of all amounts” that the transferor is liable to pay under the Act without any distinction as to the makeup of these amounts … and without any time limitation. … Neal Armstrong. ...

31 May 2019- 1:05am Connolly – Federal Court of Appeal finds that the CRA internal guidelines on waiving the RRSP over-contribution tax were inherently unreasonable Email this Content S. 204.1(4) provides that the tax imposed on RRSP contributions may be waived by the Minister if she is satisfied that the over-contribution “arose as a consequence of reasonable error, and reasonable steps are being taken to eliminate the excess.” ... Gleason JA found that these guidelines were unreasonable, stating: The delegate’s interpretation of subsection 204.1(4) of the ITA (as well as the interpretation set out in the internal CRA guideline, on which the delegate relied) thwarts the subsection’s remedial purpose as it virtually extinguishes the Minister’s discretion …. Nearly every error a taxpayer might make in over-contributing to his or her RRSP (other than a simple arithmetical error) will be caused by a misunderstanding of the applicable limits – an error of law. … Similarly, the fact that the error might have been made by a third party advisor or as a result of erroneous advice given by such advisor does not automatically mean that the error cannot be reasonable. … [Furthermore] the requirements to take reasonable steps to withdraw an RRSP over-contribution cannot be equated with immediacy or with the two-month timeframe mentioned in CRA’s internal “Guidelines for waiving tax – 19(23)7.23”. ...

14 November 2018- 12:34am Morrison – Tax Court of Canada finds that the taxpayers had the burden of disproving the Minister’s assumptions about their gift tax shelter about which they knew virtually nothing Email this Content The taxpayer, who participated in a charitable gifting program that generated receipts well in excess of the amount contributed by him, had no familiarity with how the program “worked.” ... In such circumstances, it is not unfair to the Appellants to allow the Minister to assume what went on behind the curtain. … By participating in the Programs without further inquiry, the Appellants accepted the risk that the facts behind the curtain were not what they expected them to be. ... The Queen, 2018 TCC 220 under General Concepts – Onus and s. 118.1(1) – total charitable gifts. ...

27 May 2021- 11:09pm Friedman – Federal Court of Appeal suggests that Jarvis also applies to allegations that CRA information requirements violate the Charter right not to self-incriminate Email this Content The Friedmans, a married couple, who had each received Requests for Information under s. 231.1(1) (“RFIs”) that were addressed to them personally, appealed the Federal Court decision granting a compliance order against them under s. 231.7(1). ... In rejecting the second submission, Pelletier JA stated that any failure to follow “judicial comity,” i.e., the expectation “that judges will consider the decisions of their colleagues carefully and, if they choose to differ, will explain why … is not a basis for appellate intervention.” ... Canada (National Revenue) 2021 FCA 101 under General Concepts – Judicial Comity and Charter – s. 13. ...