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" See summaries under s. 9 – timing, s. 9 – compensation payments and s. 9 – computation of profit. ...

The Queen, 2018 TCC 119 (Informal Procedure)-- summary under Subsection 16.2(2) Summary Under Tax Topics- Other Legislation/Constitution- Federal- Tax Court of Canada Act- Section 16.2- Subsection 16.2(2) notice of discontinuance could not be reversed even with Crown consent The unrepresented taxpayer filed a notice of discontinuance for her appeal of the denial of the new housing rebate after being advised by Crown counsel that her appeal was unlikely to succeed – but a day later, was informed by Crown counsel that she would be allowed the rebate. ... After referring to s. 16.2(2) and Scarola, 2003 FCA 157, Smith J stated (at paras. 10, 12): …[T]he FCA concluded that “Parliament has chosen to legislatively determine the legal consequences of a notice of discontinuance”, rather than leaving it to judicial discretion (para. 18). … The FCA went on to find that a discontinuance under subsection 16.2(2) “produces the same effect as a judgment of dismissal by the Court” (para. 21). … The FCA … noted: …I believe section 16.2 by its plain meaning took away any inherent or residual jurisdiction in the Court to allow for withdrawals of notices of discontinuance. ... Smith J dismissed the taxpayer’s motion to set aside the notice of discontinuance, but added (at para. 14): … I leave it to the Minister to consider the appropriateness of a reassessment to implement the terms of the consent, possibly pursuant to subsection 298(2) …. ...

Contrary to the Minister's focus on available information as of 31 December 2009, "instead, the taxpayer may rely on information that comes into existence after the end of the year, but before the filing-due date, to fulfill his … obligation to report…" (para. 69). After noting (at para. 81) that "the decision in Flexi-Coil indicates that a debt is a bad debt when the taxpayer determines that the debt is uncollectible and, in making this determination, has acted reasonably and in a pragmatic, business-like manner, applying the proper factors," Owen J stated (at para. 85) that "the information available to the Appellant as at April 30, 2010 indicated that as of December 31, 2009 SA had no resources to pay its debts other than what it might collect from EMB under the receivership … [and] it would have been perfectly reasonable for the Appellant to conclude that only a portion of the principal owed was likely to be recovered and that the Interest was illusory and would not be recovered." Respecting the Minister's claim that "the Appellant should have recorded the Interest as income and then claimed the deduction" (para. 89), Owen J noted (at para. 89) that the Minister "was not able to identify exactly how the deduction … is claimed on the return," that "although the letter did not make specific reference to paragraph 20(1)(l) or 20(1)(p), it did state that the Interest was not … collectible … [representing] the essential characteristic of a bad debt" (para. 90) and "in any event … it is well established that it is open to a taxpayer to amend his return through the appeal process [citing Imperial Oil, 2003 FCA 289, at para. 10]" (para. 91). ...

. … [I]f the term … of the lease was irrelevant to the method of calculation of the payment, 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. … The method of calculation of the prepayments was the same across the different leases, even though the duration of the leases varied. ...

. … [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. … ...

. … [T]his is sufficient to permit the Court to conclude that CO2 Public had effective control and thus de jure control of the appellant within the meaning of Buckerfield ’s and Duha Printers. ... Furthermore, the research agreement was similar to the development agreement in Aeronautics which was found in that case to “constitute … a legally-enforceable arrangement capable of establishing de facto control under subsection 256(5.1)” (para. 68) – and the facts here were similar to Lyrtech and Solutions Mindready. Respecting the argument, in the alternative, of the Crown, that the declaration of trust constituted an agreement referred to s. 251(5)(b)(i) and, having regard to there being a discretionary trust, s. 248(25) deemed CO2 Public to be beneficially interested in CO2 Trust, Smith J stated (at para. 70) that although it was unnecessary for him to address this argument: It appears to me however that this Court is bound by the decision … in … Propep. ...

The Court found that the appellant was a financial institution under s. 149(1)(a)(iii) as a person “whose principal business is as a … dealer in … financial instruments.” ... The Court also noted (also at para. 26, TaxInterpretations translation): Furthermore, in Elgin Mills Leslie Holdings … the Tax Court of Canada indicated that a cheque is a “financial instrument” within the meaning of subsection 123(1) …. ...

D’Auray J went on to find that no penalty was applicable, stating (at paras. 128 and 129): Gross negligence … must involve a high degree of negligence tantamount to intentional acting, or an indifference as to whether the law is complied with or not. … Mr. ... In addition, as stated … in Mensah … even if Mr. Hansen’s conduct was consistent with two viable and reasonable hypotheses, one justifying the penalty and one not, the benefit of the doubt must be given to the taxpayer and the penalty must be deleted. ...

. … The Applicant … failed to explain in any meaningful way why it would be just and equitable for the Minister [grant the request]. … I am not satisfied that the Applicant has demonstrated any error by the Minister’s delegate in his finding that the amendment requests constituted an attempt to circumvent the successor rule stipulated in section 66.7 …. ...

. … [T]he words “with all due dispatch”, as set out in section 152(1)…, have no bearing on this analysis. In also rejecting the taxpayer’s submission that he had ceased to be a director in 2006 as all the assets and undertaking of the corporation had devolved to the trustee in bankruptcy, so that the two-year limitation period precluded the Minister’s assessment, Smith J stated (at paras. 24-26): … Kalef …found that Mr. ... More importantly, I note that the assessment … relates to amounts due … which arose prior to the date of bankruptcy. … I conclude that the Appellant was still a director of the Corporation when the Notice of Assessment was issued in May 2012. ...