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Before confirming the decision below to dismiss the application, LeBlanc JA set the stage by stating that “[t]he true intentions of the parties, as they emerge from extrinsic materials when it comes to Article 25 (namely to promote the exchange of information to the maximum extent possible with a view, notably, of preventing tax evasion and avoidance), are reflected … in the actual language of that provision, coupled with that of the Interpretative Protocol.” He then found that “it was reasonably open to the CRA … to proceed with the … RFIs at the time it did in view of the fact that [the taxpayers] had, to that point, denied, on more than one occasion, having any such [foreign] assets, revenues or activities in the taxation years at issue.” Regarding the taxpayers’ submission that the specific listing in the Protocol, of types of information that could be requested, established a “ceiling” for such requests, LeBlanc JA stated that “paragraph 2(b) of the Interpretative Protocol establishes a threshold, not an upper limit” and that “on a reasonableness analysis … there is no issue with the fact that the CRA provided the Swiss Authorities with more information—essentially background information—than what was minimally required by paragraph 2(b) of the Interpretative Protocol.” ...

10 May 2024- 12:09am DAC – Tax Court of Canada finds no abuse in avoiding CCPC status by continuing to BVI Email this Content With a view to its imminent disposition of the shares of a subsidiary, the taxpayer continued to the British Virgin Islands, with the result that it ceased to be a Canadian-controlled private corporation (CCPC) and became a private corporation that was not a CCPC (its central management and control remained in Canada). ... In finding no abuse of s. 123.3, D’Arcy stated: Parliament has chosen, for policy reasons, to have different sets of rules for different corporations. … Prior to being continued in the British Virgin Islands, the Appellant was on one side of the dividing line [a CCPC] and, after it was continued, it was on the other side of the dividing line [a non-CCPC]. … [T]he Appellant’s choice to be taxed as a non-CCPC did not abuse section 123.3 since Parliament only intended it to apply to a corporation’s investment income that is taxed under the regime for CCPCs. ... The King, 2024 TCC 63 under s. 245(4), s. 123.3, s. 123.4(1) – full rate taxable income – (b)(iii) and s. 250(5.1). ...

27 June 2018- 11:50pm Rio Tinto Alcan – Federal Court of Appeal finds that fees incurred by a public board in determining to make a bid, as contrasted to implementation, were currently deductible Email this Content Pelletier JA confirmed the distinction between fees relating to acquisition and divestiture transactions of the taxpayer (“Alcan”) that were “incurred as part of Alcan’s decision-making process” (“oversight expenses”) and fees that “were incurred in the course of putting into effect Alcan’s decision once it had been made” (“implementation costs”). ... This entailed accepting the proposition that fees incurred in connection with the advisability of acquiring or spinning-off a whole company qualified as being paid for “advice as to the advisability of purchasing or selling a specific share … of the taxpayer.” ... Rio Tinto Alcan Inc., 2018 FCA 124 under s. 18(1)(b) – capital expenditure v. expense – oversight and investment management, s. 20(1)(bb) and s. 20(1)(g). ...

16 November 2021- 10:47pm McNeeley – Federal Court of Appeal applies the principle that the Act must prevail over an overlapping Regulation Email this Content A distribution to an employee under an employee benefit trust (EBP) is taxable under s. 6(1)(g) rather than being subject to the usual trust distribution rules in s. 107. ... In finding that it was an EBP, he cited Oldman for the proposition that “[o]rdinarily … an Act of Parliament must prevail over inconsistent or conflicting subordinate legislation,” and then stated: [S]ince the definition of a prescribed trust is set out in the Regulations, the paramountcy of the definition of an employee benefit plan in the Act must govern. ... Canada, 2021 FCA 218 under s. 248(1) – EBP and Statutory Interpretation – Regulations/Statutory Interpretation. ...

24 May 2022- 11:08pm Marin – Tax Court of Canada confirms that FTC domestic and Treaty provisions are applied re the particular year in which the subject income was earned Email this Content France started imposing income tax on rental income as it was earned rather than the tax being payable one year in arrears, as previously. However, the taxpayer (a Canadian resident with a French rental property), like others, was granted transitional relief so that in 2019 he received a tax credit from the French government equal to the French tax otherwise payable by him on his 2018 income – so that in 2019 he only had to pay the current tax on his 2019 rental income. ... The Queen, 2022 CCI 49 under s. 126(7) – non-business income tax, Treaties – Income Tax Conventions, Art. 6, Art. 24. ...

29 April 2018- 10:01pm ENMAX – Alberta Court of Appeal finds that interest on a loan from a tax-exempt parent should be at an arm’s length rate reflecting implicit parental credit support Email this Content A wholly-owned subsidiary (ENMAX) of the City of Calgary made 10-year subordinated term loans to ENMAX power-distribution subsidiaries at interest rates mostly of 11.5% and 10.3%. ... Summaries of Alberta v ENMAX Energy Corporation, 2018 ABCA 147 under s. 20(1)(c)(i), General Concepts – Tax Avoidance, Statutory Interpretation – Hansard, and s. 67. ...

. – Court of Quebec finds that legal fees incurred to recover misappropriated funds were not capital expenditures Email this Content After substantially all of the assets of a Canadian corporation (Mobile) owned by a German family were misappropriated by a Canadian director (Black), Mobile brought an action against him, with the action subsequently being settled in 2012 by the payment by Black of an agreed sum plus interest thereon at 5%. ... Agence du revenu du Québec, 2019 QCCQ 7378 under s. 18(1)(b) – capital expenditure v. expense – damages and s. 169(1). ...

14 March 2021- 11:26pm Polonovski – Court of Quebec prefers IT-218R over CAE Email this Content Two individuals acquired a rental property, consisting of a duplex and triplex, in 2004. ... Agence du revenu du Québec, 2020 QCCQ 8943 under s. 9 – capital gain v. profit – real estate, computation of profit. ...

21 March 2021- 10:30pm Savics – Federal Court of Appeal finds that s. 152(5) permits the restoration of an initial assessment of income that had been previously reversed by reassessment Email this Content To present simplified facts, a taxpayer reported losses from a film distribution LP of $300 per year in Years 1 through 3 and also reported (and was initially assessed for) the $100 of income-account gains that was allocated to him by the LP for Year 4. ... The taxpayer then argued that the Year 19 reassessment was invalid because it did not satisfy s. 152(5), which prohibits the Minister from reassessing beyond the normal reassessment period to include income that “was not included in computing the taxpayer’s income for the purposes for an assessment, reassessment or additional assessment made … before the end of [that] period.” ... Savics was reassessed in [Year 7], the initial assessment … was still an assessment that was made before the end of his normal reassessment period. … I do not accept that the purpose of subsection 152(5) … is to prevent the Minister, in reassessing a taxpayer under subsection 165(3) … from restoring a taxpayer to their original filing position by reinstating a particular source and amount of income that had been reported by the taxpayer, assessed as filed, and then subsequently deleted as a result of a reassessment. ...

However, he indicated (in what you might term 2 nd-tier obiter) that there would have been such misuse: The policy, or underlying rationale, of the exemption … is to promote competition of affiliates operating in international markets. … [I]t follows that Loblaw Financial was misusing this exemption as it was not competing in any manner in any international market. ... The Queen, 2018 TCC 182 under s. 165(1.11), s. 95(1) – foreign bank, investment business, para. ... (c), s. 9 – capital gain v. profit – foreign exchange, s. 152(4.01)(a)(ii), s. 245(3), s. 248(10), s. 245(4), s. 95(2)(l). ...