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Maso – Privy Council confirms application of minority discount to minority bloc of public-company shares Email this Content Some minority shareholders of a Caymans NASDAQ-quoted company dissented when they were squeezed out in a going-private transaction for a modest (26%) premium over the trading price. ... Summary of Shanda Games Ltd v Maso Capital Investments Ltd & Ors (Cayman Islands) [2020] UKPC 2 under General Concepts – FMV – shares. ...

30 May 2021- 11:26pm Mussalli – Full Federal Court of Australia finds that “rent prepayments” made by new franchisees to reduce percentage rent payments on leases were capital expenditures Email this Content Two Australian trusts that were to be the franchisees for seven McDonald’s restaurants agreed, at the same time as they agreed to enter into leases of the premises for base rents plus sales-based percentage rents, to make a lump sum “prepayment of rent” so as to reduce the percentage rent payable. ... In finding that the rent prepayments were capital expenditures, so that such deduction was not permitted, Mckerracher and Stewart JJ stated: There is no principle that a payment that substitutes for future revenue outgoings or which compensates for them, or which more accurately in this case obviates or removes the need for them, must itself be revenue. … [I]f the term … of the lease was irrelevant to the method of calculation of the payment [as was the case here], then any argument that the payment was in truth … a computation of prepayment of rent is extremely difficult to mount. … The taxpayer has, in effect, purchased the right to have the better lease with the lower rent. … Neal Armstrong. Summary of Mussalli v Commissioner of Taxation [2021] FCAFC 71 under s. 18(1)(b) – Capital expenditure v. expense – Contract purchases or prepayments. ...

7 November 2021- 11:43pm CIBC – Tax Court of Canada finds that s. 39(2) historically applied only to FX gains or losses on liabilities and foreign currency dispositions 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 were redeemed for US$1 billion. ... Furthermore, Owen J disagreed with the CIBC position, stating: [S]ubsection 39(2) was not required to address foreign currency fluctuations associated with acquisitions and dispositions of property other than foreign currency because subsection 40(1) read with due regard to the need to convert the amounts identified in that subsection into Canadian dollars already addressed such fluctuations and integrated them into the gain or loss computed under subsection 40(1). … [T]his fact and the fact … that extending subsection 39(2) to dispositions of property other than foreign currency raises difficult issues together strongly suggest that Parliament did not intend that subsection 39(2) apply to dispositions of property other than foreign currency. … In conclusion … subsection 39(2) as it read in 2007 was a stand-alone provision but Parliament did not intend that the subsection apply to dispositions of property other than foreign currency. ... The Queen, 2021 TCC 71 under s. 40(3.6), General Concepts – Stare Decisis and Statutory Interpretation – Prior Cases. ...

13 December 2022- 11:10pm Abedipour – Tax Court of Canada finds that a house construction not being an adventure in the nature of trade was corroborated by its custom design features Email this Content Whether the taxpayers were required to charge HST on the sale of their newly-constructed home turned, under para. ... This strongly suggests that they built the home only for themselves. … [T]he Appellants left nothing for a potential purchaser to customize. … The fact that the Appellants finished everything to their own personal taste strongly suggests that they built the home only for themselves. ... The King, 2022 TCC 155 under ETA s. 123(1) – builder – para. (f). ...

CIBC perhaps should have succeeded on the first argument – but did not, because two things went against it. ... Based on his finding that CIBC received a taxable service, it was unnecessary for Visser J to consider the second argument – but he did anyway, and found that the Aeroplan Miles did not qualify as gift certificates, stating: Parliament intended a gift certificate to be an equivalent to money, and to have attributes similar to money. … Aeroplan Miles … fatally... do not have a stated monetary value. ... The Queen, 2019 TCC 79 under ETA s. 123(1) – supply, s. 123(1) – service, s. 181.2. ...

20 June 2022- 11:30pm Marino – Federal Court of Appeal confirms the Oceanspan principle that a non-resident who does not compute income from any source for ITA purposes does not have a taxation year Email this Content An individual with no connection to Canada paid significant tuition fees while in attendance at U.S. universities prior to 2012 then, on immigrating to Canada, claimed his “unused” tuition tax credits as a deduction from Canadian tax. ... In the Court of Appeal, Stratas JA stated (at para. 3) that “ Oceanspan is … directly on point … [and] binds us, just as it bound the Tax Court,” and further rejected the taxpayer’s argument- that s. 250.1 supersedes Oceanspan and has the effect of deeming every non-resident person to have a taxation year in Canada – and expressed agreement here as well with the Tax Court’s reasons. ... Canada, 2022 FCA 115 under s. 248(1) – taxation year, and s. 250.1(a). ...

3 December 2017- 7:30pm Pre-production mine development expenses that qualify under CEE – (g.4) need not qualify under (g.3) Email this Content Para. ... Summary of 11 October 2017 Internal T.I. 2017-0719181I7 F under s. 66.1(6) – CEE – para. ...

7 March 2018- 1:11am Iggillis – Federal Court of Appeal indicates that privilege is not lost when a tax opinion is shared with a party with a “sufficient common interest in the same transactions” Email this Content Solicitor-client privilege over a tax-planning memo prepared for the purchaser in a tax-structured purchase transaction by a tax lawyer was not lost when the tax lawyer provided the memo in draft form to the vendors' tax lawyer, whose comments resulted in memo revisions. ... Webb JA stated: [W]hen dealing with complex statutes such as the Income Tax Act, sharing of opinions may well lead to efficiencies in completing the transactions and the clients may well be better served as the application of the Income Tax Act will be of interest to all of the parties to the series of transactions. … [The appellants] had sufficient common interest in the transactions to warrant a finding that … the … memo is protected from disclosure by solicitor-client privilege. ... The Queen, 2018 FCA 51 under s. 232(1) – solicitor-client privilege. ...

20 December 2019- 12:42am Loyer Succession – Federal Court allows review application for failure of CRA to consider a penalty-waiver agreement of the ARQ for the same unreported income Email this Content The estate of a suspected drug dealer, who had been murdered, was assessed by the ARQ for income that he had not reported. CRA followed suit with assessments made on the same basis – but CRA did not follow the ARQ’s lead when the latter agreed with the estate to waive all gross negligence penalties- and did not even mention the Agreement to this effect between the estate and the ARQ in its second level review of the estate’s request under s. 220(3.1) for relief. ... The failure to do neither … had the effect… of “depriving the process of justification, transparency and intelligibility,” to adopt … Telfer …. ...

26 June 2017- 1:02am Mady – Tax Court of Canada finds that the series of transactions can inform whether an included property transfer has a bad s. 74.5(11) purpose, and that the taxpayer is not responsible under s. 163(2) for the unbeknownst sharp practice of his tax advisor Email this Content As a result of Dental College requirements, the common shares of the professional corporation through which the taxpayer carried on his dental practice (“MDPC“) had to be transferred from a family trust to him. ... Hogan J stated: While [the tax advisor] acted imprudently in failing to disclose the pending sale of MDPC to his colleague, I do not believe that the Appellant can be held accountable for his actions. … It is well established that a taxpayer is responsible for the actions of his agent only where the taxpayer is privy to the gross negligence of that agent or wilfully blind…. ... The Queen, 2017 TCC 112 under s. 74.5(11), General Concepts – FMV – Shares, General Concepts – Ownership, s. 86(2), s. 163(2) and General Concepts – Price Adjustment Clause. ...