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3 July 2018- 12:50am Pomerleau – Federal Court of Appeal finds that GAAR applied to converting soft ACB (generated from crystallizing the capital gains deduction) into pseudo-hard ACB under s. 53(1)(f.2) for use in extracting surplus Email this Content To simplify the facts somewhat by ignoring transactions in which the taxpayer accessed tax attributes of his sister, the taxpayer wanted to extract $2M from a family corporation, and was willing to do so on a basis that resulted in him receiving a deemed dividend of $1M provided that he was able to extract the other $1M tax free by using the previous step-up of the ACB of the shares of him (and his sister) to $1M using the capital gains deduction. ... To this end, subparagraph 84.1(2)(a.1)(ii) requires going beyond the ACB of the shares concerned – or of the shares for which they are substituted – and enquiring as to the source of the funds which constituted them in order to ascertain if they were subjected to tax. … This rationale was circumvented by the plan implemented by the appellant. ...

4 December 2022- 11:02pm FU2 – Tax Court of Canada finds that Senate vacancies do not invalidate ITA bills passed by it Email this Content The taxpayer appealed a reassessment of its 2011 taxation year – made in reliance on a retroactive amendment made to the relevant ITA provision in 2014 – on the grounds that the amending Act was passed by a Senate that had substantial vacancies, contrary to Part IV of the Constitution Act, 1867 (which has detailed provisions respecting the appointment of specified numbers of senators from each province). ...

29 November 2022- 11:00pm Brown – Federal Court of Appeal finds that the higher Stewart hurdle for an activity with a “personal element” is not engaged merely by a personal reason for the activity Email this Content The taxpayer (Mr. ... It is possible to find a personal reason why any person is carrying on a particular activity. … Neal Armstrong. ... Canada, 2022 FCA 200 under s. 3(a) – business source. ...

11 June 2018- 12:11am Almadhoun – FCA finds that the TCC, after finding against the taxpayer, improperly directed CRA to “seriously” consider interest relief and tax remission Email this Content The Tax Court had held that the taxpayer was not entitled to the Canada child tax benefit during the years in question, but referred the matter back to the Minister so that “taxpayer relief in the form of a waiver of any applicable interest and penalties under the Act and also a remission of taxes pursuant to the Financial Administration Act ” may be “seriously consider[ed].” ... Nor is it for the Tax Court to interfere with the discretion of the Minister, if only by suggesting that the Minister “may” seriously consider taxpayer relief in the form of a waiver of any applicable interest and penalty under the Act, and a remission of taxes …. ... Canada, 2018 FCA 112 under s. 122.6 – “eligible individual”- (e), s. 171(1)(b)(iii), Charter s. 15(1) and Statutory Interpretation- ordinary meaning. ...

Livent – Supreme Court of Canada finds that auditor negligence in providing comfort to investors in a public company did not result in liability Email this Content Deloitte was found to have negligently provided a comfort letter in October 1997, which assisted Livent in raising money from new investors, and to have also negligently provided an unqualified audit opinion in April 1998 respecting Livent’s 1997 financial statements. Gascon and Brown JJ, speaking for a bare majority of the Supreme Court, found that Deloitte was not liable to the receiver for Livent for the negligent comfort letter, because it helped accomplish Livent’s purpose of raising money, stating: Deloitte never undertook, in preparing the Comfort Letter, to assist Livent’s shareholders in overseeing management; it cannot therefore be held liable for failing to take reasonable care to assist such oversight. … Consequently, the increase in Livent’s liquidation deficit which arose from its reliance on the Press Release and Comfort Letter was not a reasonably foreseeable injury. ... Summary of Deloitte & Touche v. Livent Inc. (Receiver of), 2017 SCC 63 under General Concepts – Negligence. ...

26 November 2018- 2:04am Louie – Tax Court of Canada places a temporal limitation on the advantages considered to arise from TFSA swap transactions Email this Content From May 15 to October 17, 2009, the taxpayer directed 71 “swaps” under which TSX-listed shares were transferred between her self-directed TFSA and her taxable trading account at a discount brokerage (“TDW”), or between her TFSA and her self-directed registered retirement savings plan (also with TDW). ... She was troubled that the attributable test had “no easily defined or delineated end point … regarding the length of time during which an increase may still be attributed to an impugned transaction” and noted that “A more restrictive interpretation of paragraph (b) … avoids these difficulties.” ... The Queen, 2018 TCC 225 under s. 207.01(1) – advantage- s. (b)(i), s. 207.05(3), s. 248(10) and General Concepts – FMV- shares. ...

25 September 2019- 11:58pm Lohas – Tax Court of Canada finds that buyers made purchases of iPhones as agents for a grey market reseller Email this Content A grey marketer (Lohas) of newly-released iPhones purchased them in Vancouver-area Apple stores for export to Hong Kong and Taiwan, where those models were still unavailable. ... In rejecting this argument, D’Auray J stated: … [A]ssuming the buyers purchases were in violation of Apple policy[,] at most, this made the purchase contracts voidable and not void. ... The Queen, 2019 TCC 197 under General Concepts – Agency, Input Tax Credit Information (GST/HST Regulations, s. 3(c)(ii) and General Concepts – Onus. ...

26 November 2018- 2:03am Lee – Tax Court of Canada rejects reassessments treating a Quebec discretionary trust as a sham Email this Content The taxpayer, Mr. ... Paris regarding the legal relationships created under Québec law. … [E]ven if the Appellant’s sole reason (motive) for creating the Trust and transferring the … Shares to the Trust was to save tax, that is not in and of itself evidence of a sham. ... The Queen, 2018 TCC 230 under General Concepts – Sham. ...

1 December 2024- 11:39pm Magren – Federal Court of Appeal finds it an abuse of the capital gains system to recognize a capital gain increment to a CDA account when there was no net change in economic position Email this Content The taxpayers were private companies controlled by a resident individual (Grenon), whose RRSP held 58% of the units of a publicly traded income fund (“FMO”). ... After noting that Triad Gestco had found that “the capital gain system … [is] aimed at taxing increases in ‘economic power’” rather than only “an arithmetic difference”, Monaghan JA stated that “[t]he appellants had neither an economic gain nor an economic loss; there was absolutely no change in their economic power as a result of their participation in the FMO reorganization” and “[a]s in Triad Gestco … avoidance transactions frustrated the object, spirit and purpose of the capital gain and capital loss provisions in the Income Tax Act.” ... Canada, 2024 FCA 202 under s. 245(1) – benefit, s. 245(4), s. 245(2), s. 104(6), General Concepts – Ownership, Sham. ...

However, it was precluded by statute from going back more than three years with its refund claims – but there was no such time limitation where a repayment of VAT was claimed based on there being “a decrease in consideration for a supply.” ... Lord Legatt stated: What is required … is a change in the consideration actually received by the supplier. … All that has happened is that the taxpayer has had second thoughts about how the consideration received at the time of the supply should be analysed for tax purposes. A similar issue could arise under ETA s. 232, which provides for a potential GST/HST reduction where, after GST/HST has been charged on the consideration for a supply, “for any reason, the consideration … is subsequently reduced.” ...