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1 October 2023- 11:22pm CIBC – Federal Court of Appeal confirms that the predominant element supplied by a Loblaw banking sub to CIBC was a right to access Loblaw customers, rather than a financial service Email this Content A subsidiary ("PC Bank") of Loblaw had agreed with CIBC for CIBC to provide retail banking services under Loblaw’s President's Choice trademark. ... (r.5) of the financial service definition provided an exclusion from financial service for “property … that is delivered or made available to” CIBC “in conjunction with” CIBC selling financial products of PC Bank, the supply made by PC Bank to CIBC was taxable. ... Canada, 2023 FCA 195 under General Concepts – Res Judicata, ETA s. 309(1) and s. 123(1) – financial service – (r.5). ...

Under that law … Mr Fowler is deemed not to be in employment but rather carrying on a trade. Henderson LJ (also in the majority) stated: My approach does not depend to any significant extent on the provisions of article 3(2) … however, I would accept … that the purpose of article 3(2) is to anchor the provisions of the treaty … to the domestic tax law of the Contracting State which is applying the treaty. ... Summary of Fowler v HM Revenue and Customs [2018] EWCA Civ 2544 under Treaties – Income Tax Conventions – Art. 3(2). ...

4 March 2020- 12:41am Zomaron – Tax Court of Canada finds that a service of inducing merchants to use credit card processing services was an exempt financial service Email this Content CRA viewed the taxpayer (Zomaron) as essentially a marketing arm of two “Processors” (e.g., “Elavon”) that accessed the credit card issuer and payment network to pay a merchant whose customer had used a credit card, and then used a portion of the fee (e.g., 2%) paid by the merchant at the end of the month to pay the interchange fees of that network and split the balance of the fee between itself and Zomaron in the agreed proportions. ... This, I find, is the predominant element of the supply provided by Zomaron to [the Processors].... … Even if the supply provided by Zomaron to the Processors involved services of a promotional nature, since these do not represent the predominant element of the supply, paragraph (r.4) has no application …. ... The Queen, 2020 TCC 35 under s. 123(1) – financial service – (r.4). ...

9 October 2017- 1:54am Insta-chèques – Quebec Court of Appeal finds that a company in a cheque-cashing business was a listed financial institution under the ETA Email this Content A Quebec company whose business was to cash cheques was found to be a financial institution under ETA s. 149(1)(a)(iii), namely, a person “whose principal business is as a … dealer in … financial instruments.” ... The Court stated: [T]he author Simon Labrecque properly states that the term “dealer” … relates to a person “whose business consists of dealing in financial instruments for its own account…” where this is for the purpose of profit. ... Agence du revenu du Québec, 2017 QCCA 1491 under ETA s. 149(1)(a)(iii) and s. 123(1) – debt security. ...

13 February 2020- 12:21am Alta Energy – Federal Court of Appeal confirms that Treaty shopping was not an abuse Email this Content A Blackstone LP and a U.S. shale company transferred their investment in a Canadian subsidiary (Alta Canada), that was to develop a shale formation in northern B.C., to a Luxembourg s.à r.l (Alta Luxembourg – which, in turn, they held through an Alberta partnership). ... In the Court of Appeal, the Crown conceded that the gain of Alta Luxembourg was exempted from Canadian capital gains tax by virtue of the exclusion in Art. 13(4) of the Canada-Luxembourg Treaty which provided that the Alta Canada shares were not deemed immovable property (and thus not subject to Canadian capital gains tax) on the basis that the exploration licences were property of Alta Canada “in which the business of the company … was carried on.” ... He concluded: I agree with … MIL … that the object, spirit and purpose of the relevant provisions of the Luxembourg Convention is reflected in the words as chosen by Canada and Luxembourg. ...

18 May 2017- 8:49am Robotx Solutions – Tax Court of Canada finds that solving narrowly-cast production engineering problems was not SR&ED Email this Content There was something paradoxical about a company contractually committing itself to come up with narrowly defined solutions to particular production problems of its clients, e.g., designing, making and installing a “flow rectifier plate” to straighten-out rectangular aluminum bars coming out of an extruder, while at the same time treating a portion of its expenditures in performing such contracts as “experimental development,” which requires that there be significant technological uncertainty to be resolved, i.e., a significant chance that a solution would not be found within a predictable time frame. ... The Queen, 2017 CCI 73 under s. 248(1) – scientific research & experimental development. ...

22 January 2020- 11:44pm Krumm – Tax Court of Canada applies the tax shelter rules on a private purchase of property described as Class 12 available-for-use property Email this Content The taxpayer acquired a 50% interest in software after being provided with a valuation report that indicated that the software was Class 12 property and qualified as being available for use. ... The Queen, 2020 TCC 7 under s. 237.1(1) – tax shelter – (b). ...

The transitional provision indicated that the reduced rate applied inter alia “to any supply … made on or after January 1, 2008.” ... In any event, ETA s. 133 (which, in approximate terms, deems supplies of property to occur when the agreement for their supply is entered into) deemed the agreements to be supplies of the condos, with D’Arcy J. noting in this regard that “[t]he application of section 133 is also not contingent on the existence of the Condo Units at the time the parties entered into the … Agreements ….” ... The Queen, 2022 TCC 56 under ETA s. 133 and s. 225(1) – A(a). ...

17 November 2021- 10:17pm Lauria – Tax Court of Canada accepts that shares transferred 3 weeks prior to filing the IPO preliminary should be valued at a 40% “marketability” discount to the IPO value Email this Content On April 1, 2006, the taxpayers, who were executives of Gluskin Sheff+Associates Inc. ... In fact, the Appellants just seemed to ignore it, when in my opinion, having regard to their skills in and knowledge of the securities industry from working as executives for a wealth management firm and the multiple other circumstances or red flags that went up … they were clearly aware of the impact of the IPO’s value on their holdings. ... The Queen, 2021 TCC 66 under General Concepts – FMV – shares and s. 152(4)(a)(i). ...

8 August 2021- 10:58pm 4431472 Canada – Federal Court sets aside a CRA decision not to reassess on the basis that it was unclear whether it was a final decision Email this Content A Canadian corporation (“443 Inc”) filed its tax returns on the basis that distributions received by it from a trust were distributions of fee income (the “GAM fees”). ... In explaining the significance of the distinction between these two alternatives, Pamel J had earlier noted the statement in IT-335R2 regarding s. 56(2) that “it is normally the … CRA … practice not to assess the same income twice. ...