Search - 包建铎违纪违法案件以案促改以案促治专题组织生活会 个人对照检查

Here, the CRA position was that “business” as used in Reg. 400(2) was “’ very broad and wide enough to capture corporations that generate income from sources that include income from… property or capital gains’” (para. 136), whereas Wesbild argued that “the Marconi test applies and that it had no ‘business’” and, therefore, no permanent establishment in B.C. ... The CRA was, of course, more than able to understand that filing position and take whatever steps it wished to challenge that position. … Simply, the filing position in the 2002 Return was certainly a representation, but it was not a mis representation of any kind. … Accordingly… s. 152(4)(a)(i) is not available… to allow the CRA to reassess outside of the normal reassessment period. ...

HMRC Commissioners, [2016] UKFT 0234 (TC) (First-Tier Tribunal)-- summary under Article 3 Summary Under Tax Topics- Treaties- Income Tax Conventions- Article 3 “treatment is the meaning” – employment income deemed by U.K. domestic legislation to be from carrying on a “trade” was therefore deemed by Art. 3(2) to be “business profits” for Treaty purposes The taxpayer was a resident of South Africa for purposes of the U.K-South Africa Convention (the “Treaty”) who, likely as an employee, undertook diving engagements in the UK continental shelf waters. ... And at paras 113 & 114: It is the clear purpose of section 15 ITTOIA to re-characterise what would otherwise be the exercise of employment duties as the carrying on of a trade. In so doing, in my view, section 15 ITTOIA has the meaning that the activities of an employed diver in the UK Continental Shelf constitute trading activities and that the income therefrom must be trading income and, consequently, business profits within Article 7 – the treatment is the meaning. ...

The [definition] … by no means speaks to specifically allowing different financial year-ends for Quebec purposes. The BCCA [in Veracity] … conclude[s] that because there is no uniform system of provincial taxation in Canada, then something may well “fall through the cracks. Such reasoning may well apply where provinces ascribe different tax treatment to the same category of revenue …. ...

. … [T]he intention of the parties was never to assign the options on shares, nor to subscribe for or redeem shares, but rather to transfer the sums to the foundations, and the legal act before us is that by which Des Groseillers had directed BMTC to pay those sums directly to the recipients, i.e., the foundations. … [T]he Court has reached the conclusion that the litigated transactions are not contemplated by Section VI, which comprises articles 47.18 to 58.0.7, quite simply because those provisions apply only where a qualifying person (BMTC) has agreed to issue or sell one of its securities. ... After quoting the equivalent of ITA s. 7(3)(a), he stated (at para. 73): Thus … TA article 422 cannot be engaged in order to fill in the rules for computing income provided in Section VI. ...

. … However, the equitable rights of partners under a trust of partnership property differ substantially from the equitable rights created by the declarations of trust in the 2013 Deeds. ... [T]he only right that the partners have, both before and after dissolution, in relation to each asset is a right to the account and distribution after sale of the proceeds of that asset …. Prior to the 2013 Deeds …[s]ince there was no provision to the contrary in either of the partnership deeds, Maria held the freehold titles of each partnership on trust for the partners. … Each partner had a non-specific interest in relation to all of the partnership freehold titles (as well as all of the current assets of each partnership) with a right, upon dissolution, to compel the sale of the freehold titles in order to realise a fund from which at the conclusion of the winding up a vested share could then be claimed. ...

Before adopting the primary judge’s conclusion that the taxpayer had a habitual abode in both countries, the Court stated (at paras. 29-30): [T]here is no warrant … for imputing that the habitual abode of a person is the place where the individual has spent more days. … [T]here is no warrant to give the expression “habitual abode”… a meaning other than the meaning conveyed by the ordinary meaning of the phrase. ... It was this Thai sourced income stream, derived from Mr Pike’s ongoing employment there, which not only supported his life and lifestyle there but also, all the more so after Ms Thornicroft’s employment with Ernst & Young came to an end, supported his family in Australia, including him, when he was able to be with them. ...

The majority reasons (for Middleton and Steward JJ – with whom Thawley J agreed in the result) found that for the transfer–pricing purposes at issue, it was posing the wrong question to ask “whether an arm’s length party would have agreed to the amendments, given the pre-existing terms of trade” (para. 188), and that the correct question was simply whether “the pricing formula established by those [amended] terms did not differ from those formulae which might be expected to have operated between independent enterprises dealing wholly independently with one another in the copper concentrate market at the time” (para. 191). ... In finding this approach to be insufficiently nuanced, the majority stated, that in determining the arm’s length consideration: “one should include all of the objective circumstances of the actual … mine” and the “objective circumstances of the copper concentrate market as at February 2007” (para. 179) “it would be appropriate to exclude any considerations that are the product of C.M.P.L.’s non-arm’s length relationship with G.I.A.G. and the broader Glencore Group” which “would include whatever attitude or policy C.M.P.L. had formed about the issue of risk when selling to G.I.A.G” (para. 180) “C.M.P.L. … could legitimately adopt a more conservative approach to risk so long as it was commercially rational to do so, and it is what an independent party dealing at arm’s length might reasonably be expected to have done” (para. 181) “the possibility of a range of arm’s length outcomes, each of which would be sufficient to answer the statutory test, is supported by authority” (para. 183) ...

Respecting the second question, there was an insufficient link to future supplies (paras. 123 & 124): [A]n intention merely to make supplies is not a sufficient basis on which to recover input tax… … What needs to be established is a direct and immediate link between the services supplied and the charges levied or to be levied. ...

In rejecting the assessment officer’s position that the activities carried on by Adobe India were part of the taxpayer’s core business activities carried on through Adobe India as its permanent establishment, and that the taxpayer was subject to Indian income tax on a portion of its global profits based on the fraction of global R&D expenditures represented by those expended in India, Bakhru J stated (at paras. 23): [T]here is no dispute that Adobe India- which according to the AO is the Assessee’s PE – has been independently taxed on income from R&D services and such tax has been computed on the basis that its dealings with the Assessee are at arm’s length (that is, at ALP). Therefore, even if Adobe India is considered to be the Assessee’s PE, the entire income which could be brought in the net of tax in in the hands of the Assesee has already been so taxed in the hands of Adobe India … Thus…the facts in this case do not provide the AO any reason to believe that any part of the Assessee’s income has escaped assessment under the Act. ...

. … [T]he risk of such deductions being disallowed ought most efficiently to rest with those seeking to benefit from the scheme rather than with taxpayers at large. … I would disallow the claimed duty of care as a matter of public policy. ...