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22 April 2018- 11:31pm Markou – Tax Court of Canada indicates that donative intent no longer is required for split gifts Email this Content The Ontario and Quebec appellants had engaged in the same leveraged donation program as to which the Federal Court of Appeal in Maréchaux had confirmed that none of the donations (even the cash portion) qualified as a “gift” for charitable credit purposes. In the Markou case, Paris J found that “ donative intent in civil law, as in common law, is always an essential element of a gift, even a partial gift,” whereas here “there was just one interconnected transaction and no part of it can be considered a gift that was given in expectation of no return.” ... The Queen, 2018 TCC 66 under s. 118.1(1) – total charitable gift and s. 248(30). ...

27 January 2020- 12:24am Montecristo – Federal Court of Appeal states that “delivery” for ETA purposes had its meaning under the Sale of Goods Act Email this Content ETA Sched VI, Pt. ... In this regard, she stated: The concept of delivery … is to be interpreted in the same manner as …delivery in the applicable sales of goods legislation (Jayco …). ...

3 March 2020- 12:13am Escape Trailer – Federal Court of Appeal finds that the intent of ETA is to only zero-rate goods where they are shipped to a destination outside Canada Email this Content When a B.C. ... In confirming that CRA had not acted unreasonably in declining to recommend a remission order under s. 23(2) of the Financial Administration Act, Locke JA noted that CRA had “implicitly acknowledged the general intent noted in Montecristo … that GST/HST should be limited to consumption within Canada,” but had reasonably considered that “Goods purchased by non-resident consumers are only intended to be zero-rated if they are shipped to a destination outside Canada, or they are sent by mail or courier to an address outside Canada,” and further stated: The Assistant Commissioner concluded reasonably that the predicament in which Escape Trailer found itself … was caused not by any unintended results of the legislation, but rather by its failure to comply with any of the detailed conditions for zero-rating. ...

6 October 2017- 12:38am Development Securities – U.K. First-Tier Tribunal finds that a Jersey sub, whose Jersey board approved a decision contrary to the sub’s interests, resided in the U.K. ... In finding that the subs instead were resident in the U.K., Morgan J stated: Unlike Wood v Holden … this was not a case where the board considered a proposal and, having taken appropriate advice, decided that it was in the best interests of the companies to enter into it. ... Summary of Development Securities (No. 9) Ltd & Ors v HMRC, [2017] UKFTT 565 (TC) under s. 2(1). ...

. – Court of Appeal of England and Wales finds that the ability of successor to apply predecessor losses to income from the same trade did not extend to profits from an enlarged trade Email this Content A British taxpayer (Leekes) carrying on a retail trade through four stores acquired, for nominal consideration, all the shares of another company (Coles) carrying on a similar retail trade through three stores, and then effectively wound-up Coles so as to carry on the operations of the three former Coles’ stores directly. ... They cannot refer to the enlarged trade carried on by Leekes, because that trade had never been carried on by Coles, and Coles cannot therefore be deemed to have continued to carry it on. … [I]t is necessary to ascribe a deemed continuity to the former trade of Coles, although it now forms part of the merged business carried on by Leekes, and relief may only be obtained if and to the extent that Leekes then derives trading income from the former Coles trade. ... Summary of Leekes Ltd v HM Revenue & Customs, [2018] EWCA Civ 1185 under s. 111(5)(a)(ii). ...

14 June 2019- 12:08am Lounsbury – Tax Court of Canada finds that substantial completion had occurred by the time of the interim occupancy certificate Email this Content The taxpayer and her husband built a house, which was near Lake Huron and a 2 ½ hour drive away from their Brampton rental apartment and full-time employment, doing a large portion of the work themselves on weekends, with the intention of retiring there. ... This … time spent in each location is very important and must be given great weight. ...

31 May 2020- 11:32pm Laliberté – Federal Court of Appeal confirms that the Cirque du Soleil’s bearing most of the $41.8M cost of a space trip for its controlling shareholder gave rise to a shareholder benefit Email this Content The founder and controlling shareholder of Cirque du Soleil, had been found by the Tax Court to have received a taxable benefit under s. 15(1) (or alternatively, under s. 246(1)) equalling approximately 90% of the $41.8 million cost of sending him on a trip to the international space station in September and October 2009, given that the cost was borne by his family holding company and then largely passed through to the top operating company (“Créations Méandres “) in the Cirque du Soleil group, but with there being a matching contribution of capital by the holding company to Créations Méandres so that independent shareholders would not bear any of the cost of the trip. ... Canada, 2020 FCA 97 under s. 15(1) and General Concepts – Onus. ...

25 October 2020- 11:24pm Healius – Federal Court of Australia, Full Court finds that lump sum payments made to lock-up doctors at medical centres effectively controlled by the payer were capital expenditures Email this Content A subsidiary (“Idameneo”) of an Australian public company provided medical centre facilities and services to doctors in consideration for 50% of the fees generated by them. ... The Court went on to state that “[i]f all that Idameneo had done was to set up the Centres and then secured practitioners as customers to occupy the Centres and pay for services then term contracts with upfront lump sum payments might indeed be seen to be analogous to those made in BP Australia, ” where it was found that securing five-year agreements of gas stations to serve as BP gas stations did not give rise to an enduring benefit. ... Summary of Commissioner of Taxation v Healius Ltd [2020] FCAFC 173 under s. 18(1)(b) – capital expenditure v. expense- current expense v. capital acquisition. ...

8 May 2023- 8:53am CIBC – Federal Court of Appeal finds that s. 40(3.6) applied to deny an FX loss arising on shares Email this Content CIBC realized an FX loss of C$126.4 million in 2007 when shares of a US subsidiary for which it had subscribed US$1 billion approximately 11 months’ earlier were redeemed for US$1 billion. ... In dismissing CIBC’s appeal, Webb JA stated: There is nothing in subsection 40(3.6) of the ITA that would require the application of subsection 39(2) of the ITA before the loss realized on the redemption of shares is deemed to be nil by subsection 40(3.6) of the ITA. … As a result, the loss realized by CIBC on the redemption of shares is deemed to be nil and, therefore, there is no loss that could have been deemed to be a capital loss under subsection 39(2) of the ITA. ... Canada, 2023 FCA 91 under s. 40(3.6), Statutory Interpretation – Interpretation Provisions, Double Inclusions/Deductions. ...

15 April 2018- 11:48pm Smith – Tax Court of Canada references the principle that income is to be computed on a “sub-source” basis Email this Content Graham J found that a status Indian, who earned exempt income from employment and non-exempt investment income, could only deduct a registered pension plan contribution in computing his employment income (and not from his income generally), so that the deduction effectively was denied. ... The Queen, 2018 TCC 61 under s. 147.2(4) and Statutory Interpretation – Headings. ...