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She completed the sale of all the shares to the purchaser and used ½ the proceeds to repay the note. ... Favreau J found that the sale of ½ of the taxpayer’s shares to his wife for a note clearly was a tax avoidance transaction: [T]he proceeds from the sale of the shares she purchased were used in full to repay the note.... ... Accordingly, the s. 245(2) assessment of the taxpayer to include all (rather than ½) of the taxable capital gains in his hands was confirmed. ...

He stated: [A] taxpayer should have the burden to prove, on a balance of probabilities, any facts that are alleged by that taxpayer in their notice of appeal and that are denied by the Crown. … If there are facts that were assumed by the Minister in reassessing a taxpayer and that are not inconsistent with the facts as pled by that taxpayer...the taxpayer [must] prove, on a balance of probabilities, that these facts assumed by the Minister (and which are in dispute and are not exclusively or peculiarly within the Minister’s knowledge) are not correct. … Once all of the evidence is presented, the Tax Court judge should then (and only then) determine whether the taxpayer has satisfied this burden. ... Stratas JA (with whom Woods JA agreed) stated that he found “much of what [Webb JA said] … to be thoughtful, illuminating and attractive,” but also that he declined “to express a definitive opinion on the correctness of his views on this fundamental point.” ... Canada, 2017 FCA 131 under General Concepts – Onus. ...

28 March 2018- 1:05am Fournier – Court of Quebec finds that a taxpayer could reverse an assessment for a taxable benefit by subsequently engaging in self-help rectification Email this Content The ARQ assessed the taxpayer and his wife for taxable benefits for a period of approximately 2 ½ years on the alleged basis that during that period they occupied on a rent-free basis a condo that was owned by a non-arm’s length corporation. ... Apparently well after these assessments, the taxpayer entered into a “correcting” notarial deed with the corporation to move back the date of the transfer of ownership of the condo unit to him from the corporation from the end to the beginning of this 2 ½ year period. ... Agence du revenu du Québec, 2018 QCCQ 786 under General Concepts – Rectification. ...

13 January 2020- 12:23am Richards – Tax Court of Canada finds that legal fees incurred in an oppression action were both on capital and income account Email this Content The main source of income of the taxpayer and her husband was distributions from a family trust of dividends from two family corporations. ... McPhee J allowed the deduction of only about 25% of the legal expenses, stating: Legal expenses incurred for the purpose of preserving capital assets are not deductible [citing Keating]. … [T]he fees incurred pursuing the Oppression litigation had as its dominant purpose, the intention to protect the Appellant’s interest in her shares in the corporations. … [T]here is no question that professional fees were incurred seeking both the support and/or the payment of dividends by the corporations and the redemption of the Appellant’s shares. … Therefore, I have apportioned the fees in issue. ... The Queen, 2019 TCC 289 under s. 18(1)(a) – legal fees. ...

25 September 2022- 11:17pm Deegan – Federal Court of Appeal confirms that FATCA-required disclosures do not constitute an unreasonable seizure contrary to the Charter Email this Content Woods JA confirmed the rejection by the Federal Court of the position of two American citizens, who had had no significant connection with the U.S. since early childhood, that the information-reporting requirements in ITA Part XVIII (the “Impugned Provisions”) resulted in the unreasonable seizure of financial information belonging to U.S. persons in Canada, contrary to s. 8 of the Charter. She stated: The Impugned Provisions … are similar to information automatically provided to the CRA for regulatory purposes (e.g., T4s by employers, T5s by financial institutions, and taxpayers’ annual disclosure of foreign holdings). … It is difficult to see how a seizure contemplated by the Impugned Provisions significantly intrudes into privacy interests, as the appellants appear to suggest. Accordingly, I see no reason in this case to revisit the comment in Jarvis that the entire ITA is a regulatory statute. … Quite simply, the Impugned Provisions are an example of international cooperation in the administration of income tax laws. … Neal Armstrong. ...

Alcindor JCQ accepted that the transfer was made to them for the purpose of obtaining mortgage financing on the unit and that they acquired the unit as nominees for 9154-6093 (so that no QST was payable), stating: [D]espite the assignment, 9154-6093 rented Unit 54 to third parties, declared the income from such rentals, and collected the taxes and remitted them to Revenu Québec. … Just before the sale of the Unit in October 2019 [the shareholders] retroceded the building to 9154-6093, which collected and remitted the GST and QST [on the sale] … to Revenu Québec. She further stated that in light of this reporting of the 2019 sale: [A]llowing Revenu Québec to recover QST on the 2009 transaction means that 9154-6093 is remitting QST twice on the same housing unit. … [T]his runs counter to both Revenu Québec's role and tax policy in this regard. ... Agence du revenu du Québec, 2023 QCCQ 10241 under General Concepts – Ownership. ...

In addition to finding that this claim was non-deductible on more usual grounds (e.g., a negative T2200), C Miller J found that there had been no expenditure, stating: … There are no cheques to Ms. ... I conclude there is not. … I do not see how anything has been paid or expended to Ms. ... The Queen, 2018 TCC 1 under General Concepts – Payment and Receipt and s. 8(1)(i)(ii). ...

8 October 2019- 11:14pm Weaver – Quebec Court of Appeal applies the REOP doctrine to a “gentleman farmer” Email this Content A full-time engineer also maintained two horses, which his two daughters rode in equestrian competitions. ... In reversing the finding below that this “gentleman farmer” was entitled to his claimed losses, the Court stated: [T]he judge did not analyze the activities of the respondent in relation to the objective factors laid out … in Stewart, namely, (1) the profit and loss experience in past years; (2) the taxpayer’s training; (3) the taxpayer’s intended course of action; and (4) the capability of the venture to show a profit. … [I]t is difficult to conclude that the predominant intention of the respondent was to derive profit from the equestrian activities of his daughters and that he showed serious businesslike conduct. ... Weaver, 2019 QCCA 1687 under s. 3(a) – business source. ...

3 August 2020- 10:55pm Contact Lens King – Tax Court of Canada finds that on-line sales of contact lenses were not zero-rated given failure to copy purchasers’ prescriptions Email this Content A GST/HST registered U.S. corporation sold and delivered contact lenses (typically replacement contact lenses) to Canadian consumers without verifying that they had a matching prescription. ... II, s. 9 (which requires inter alia that the contract lenses “are, or are to be, supplied under the authority of a prescription prepared … by [a qualified practitioner] for the treatment or correction of a defect of vision,” Smith J stated: [I]t is not sufficient … that the appellant's website inform the consumer of the need for a valid prescription. The appellant must itself obtain a copy of the prescription … from which it can be concluded that the consumer has a prescription "for the treatment or correction of a defect of vision. ...

15 October 2020- 12:04am Bouclair – Court of Quebec orders a stay of a federal tax evasion prosecution based on an ARQ audit file gathered for Quebec civil penalty purposes Email this Content A Revenue Quebec audit team gathered incriminating evidence respecting the alleged diversion of company funds to pay for the construction of a chalet for its CEO (by allegedly paying false invoices directed to it by the builder). RQ did not accord any of the Jarvis protections to the company and its CEO, because it had no intention of criminally prosecuting – it was content to impose the equivalent of s. 163(2) penalties (in addition to the tax) – as did CRA, a year later, following the RQ lead. ... However, he stated that he could not “condone … a practice” of using a “treasure trove of ready-made files for ‘investigation’ and prosecution containing uncautioned conscripted evidence,” as “otherwise, the Jarvis protections simply melt away.” ...