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13 November 2017- 1:06am Barclays Wealth Trustees – English Court of Appeal indicates that the determination of whether there is a single trust should accord with how a trust lawyer would view the matter Email this Content Henderson LJ rejected a submission on behalf of HMRC that a separate settlement (i.e., trust) was created whenever further property was contributed to be held by the trustee of a previously-settled trust. He stated that his single-trust view was “how a trust lawyer or practitioner would view the matter,” and also was consistent with the statutory definition (in the Inheritance Tax Act 1984) of “settlement,” which referred to “any disposition or dispositions of property … whereby the property is for the time being … held in trust….” ... Commissioners for Her Majesty's Revenue and Customs, [2017] EWCA Civ 1512 under s. 104(1) and Statutory Interpretation – Interpretation/Definition Provisions. ...

14 May 2020- 12:36am Cristofaro – Court of Quebec finds that a non-resident with no sources of income in Quebec nonetheless could transfer a tax credit to a Quebec taxpayer Email this Content In 2003-0026827, CRA applied Oceanspan to find that a non-resident student who has no Canadian sources of income is precluded from transferring her unutilized tuition credits to her resident father under ITA s. 118.9 because: an individual who is not resident in Canada and who has no Canadian source income would not be entitled to the tuition and education tax credits. ... He went on to indicate (at para. 49) that in any event, the daughter could be considered to be “subject to tax” (or “liable for tax” to use his preferred translation, and also essentially the phrase considered in Crown Forest): The income tax legislation … applies to all Canadian residents … because they may, in one year or another, earn business income in Quebec…. ...

25 June 2018- 1:23am CIBC – Tax Court of Canada finds that Visa’s fees to CIBC were subject to GST given inter alia that it was not a “person at risk” Email this Content CIBC issued Visa credit cards and utilized a credit card payment system that was operated and managed by Visa Canada. ... The Queen, 2018 TCC 109 under ETA s. 123(1) – supply, asset management service, financial service – s. ... (r.5), Financial Services and Financial Institutions (GST/HST) Regulations, s. 4(2)(b), s. 4(3)(c), s. 4(1) – person at risk. ...

Solo Capital – UK Supreme Court confirms that the revenue rule does not apply to fictitious tax refund claims made by a non-taxpayer Email this Content The Danish Customs and Tax Divisions (“SKAT”) sued in an English civil court to recover £1.44 billion which it had paid based on allegedly fraudulent claims for refunds of Danish dividend withholding tax – SKAT alleged that most of the appellants (“Solo Capital”) had fraudulently misrepresented that they, as shareholders of Danish companies, had been subject to withholding at a rate in excess of the Treaty-reduced rate on dividends when, in fact, they never had held any shares in any of the relevant Danish companies. ... Summary of Skatteforvaltningen (the Danish Customs and Tax Administration) v Solo Capital Partners LLP & Ors [2023] UKSC 40 under Statutory Interpretation – Revenue Rule. ...

11 February 2019- 12:30am Forbes Painting – Federal Court finds that CRA is required to consider financial hardship in s. 221.2 credit transfer requests Email this Content The taxpayer (Forbes) did not file its corporate income tax returns for its 2006 and 2007 years, showing a refund position, until well beyond the three-year limitation under s. 164(1) for claiming those refunds. ... Before returning the matter for redetermination by another delegate, Boswell J stated: The ability of a corporate taxpayer to continue as a going concern … is a factor that should be weighed …. …When assessing a request for the re-apportionment of an SBC, the Minister should also have regard to whether denial of the request might possibly result in the Minister’s inability to collect outstanding tax arrears from a taxpayer. … [T]he decision [is] unreasonable because it is not apparent or transparent that Forbes’ financial hardship was a factor in the decision-making process. ...

11 August 2021- 10:54pm Vocan – Tax Court of Canada finds that supplies to insurers of injury assessment reports were not GST/HST exempted Email this Content Vocan supplied assessment reports to insurance companies or law firms regarding individuals injured in motor vehicle accidents. ... Vocan submitted that its facility was a health care facility, being “a facility … operated for the purpose of providing medical … care,” so that its supply of the reports was exempted under Sched. ...

30 May 2022- 11:04pm Khanna – Federal Court of Appeal finds that a gross negligence penalty could not be sustained where the trial was all about the taxpayer’s husband and she was ignored Email this Content The taxpayer conceded that she had unreported income from rental properties owned equally by her and her husband, but appealed the imposition of a gross negligence penalty. Monaghan JA noted that the taxpayer was not called to testify (which the Crown could have done) and that essentially the only testimony was of the taxpayer’s husband, which “was almost entirely about his actions and inactions,” so that essentially “nothing on the record address[ed] her involvement in or knowledge about the details of the rental business … and nothing on the record establish[ed] whether … the appellant knew she had unreported income prior to receipt of the reassessments.” ...

14 January 2024- 10:36pm Duval – Quebec Superior Court indicates that it has jurisdiction to consider requests for judicial review of ARQ refusals to reassess consequentially on a federal reassessment Email this Content The Quebec taxpayers did not object to ARQ reassessments that denied ½ of their claimed business loss for 2010 – but then successfully appealed to the Tax Court similar federal reassessments of that year. ...

18 February 2020- 11:49pm Barejo – Federal Court of Appeal finds that the amount payable under a “debt” for s. 94.1(1)(a) purposes need not be crystallized until maturity Email this Content An offshore fund ("SLT"), in which the taxpayer had an interest, invested in instruments (labelled as "Notes") of non-resident subsidiaries of Canadian banks. ... After stating that “subsection 94.1(1) … contemplates in express terms that an instrument that derives its value from fluctuating portfolio investments can be a debt” and that a narrow construction of “debt” would go contrary to the purpose of the above provisions of “annual imputation of income while … foreign investments are in place,” Noël CJ found that future crystallization of the amount due was sufficient, and concluded: When regard is had to the text, context and purpose of paragraph 94.1(1)(a), a debt arises for purposes of this provision when an amount or credit is advanced by one party to another party; an amount is to be paid or repaid by that other party at some point in the future in satisfaction of the advance and this amount is fixed or determinable or will be ascertainable when payment is due. As these three conditions are present here … this suffices to dispose of the appeal …. ...

14 August 2022- 11:02pm Coopers Park – Tax Court of Canada grants production of documents reviewed by the GAAR Committee in a similar case that then was applied to the taxpayer Email this Content The taxpayer, which had been assessed under s. 245(2) to deny the carryforward of losses and credits, sought the discovery of proposals made by CRA to two unrelated taxpayers that set out its understanding of the facts and its legal analysis thereof. ... In finding that they were discoverable, Owen J stated: [I]n GAAR cases, the legal analysis of the Minister in support of the policy relied upon is subject to discovery. … [R]eliance is not the test for relevance. … [C]onsideration of the documents in the context of the audit of the Appellant is sufficient to make them relevant for the purposes of discovery. ... After noting that “[i]f the GAAR Committee had considered the Appellant’s case, there is no doubt that the Appellant would be entitled to discovery of all non‑privileged documents considered by the GAAR Committee in deciding to assess the Appellant under the GAAR,” Owen J stated: [T]he Appellant is equally entitled to all non-privileged documents considered by the GAAR Committee in deciding to assess under the GAAR the unrelated taxpayer described in the Similar Case … because that decision directly resulted in the subsequent decision to assess the Appellant under the GAAR. ...