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24 September 2021- 12:27am G E Financial Investments – First-Tier Tribunal finds that a deemed US resident was not a US treaty resident Email this Content A US company (“GEFI Inc.”) and UK company (“GEFI”) in the GE group formed a Delaware LP (“LP”) with GEFI Inc. as the 1% general partner and GEFI as the 99% limited partner. ... In finding that the LP did not have a permanent establishment in the US on the basis that it was not carrying on business there under the UK concept of a business (having regard to Art. 3(2)), Brooks J indicated that there was a mere holding of five affiliate loans (albeit, in very large amounts) over the course of approximately six years, which represented “more of a passive, sporadic or isolated activity than a regular and continuous series of activities” – and noted the there was “nothing to suggest that personnel or agents acting on behalf of the LP made or conducted continuous and regular commercial activities in the US.” ... The Commissioners for Her Majesty's Revenue & Customs, [2021] UKFTT 0210 (TC) under Treaties – Income Tax Conventions – Art. 4, Art. 5. ...

27 September 2023- 12:35am Mold Leaders – Tax Court of Canada finds that challenging engineering involving standard procedures was not SR&ED Email this Content ML was engaged in the custom designing and making of injection moldings. ... [The president’s] answers did not reveal or identify technological uncertainties being addressed in a scientific manner. … ML’s favoured approach … was to basically try various options, anticipating that one likely would work. ... The King, 2023 TCC 127 under s. 248(1) – SRED. ...

Federation of Law Societies – Supreme Court of Canada reasoning indicates that lawyers’ accounts likely are privileged Email this Content In the course of striking down the search-and-seizure provision in the federal anti-money laundering legislation, Cromwell J confirmed the absolute statement in Lavallee that "all information protected by the solicitor-client privilege is out of reach for the state," and also indicated that it was contrary to s. 8 of the Charter to place a blanket obligation on lawyers to provide names and addresses of their clients to the federal authority, in order to be able to claim solicitor–client privilege (as "the name of the client may itself be (although is not always) subject to solicitor-client privilege... ... Federation of Law Societies of Canada, 2015 SCC 7 under ITA, s. 232(1) – privilege, and Charter – s. 7. ...

29 November 2021- 11:23pm CRA determined that a Singapore corporation was a resident there for Treaty purposes – even though it was subject to tax on a territorial basis- provided its CMC was there Email this Content Generally, a person must be “liable to tax” in a contracting state to be a resident there for treaty purposes. ... Summary of 25 November 2021 CTF Roundtable, Q.4 under Treaties – Income Tax Conventions – Art. 4. ...

24 March 2022- 11:07pm NCL Investments – UK Supreme Court recognizes that employee stock option expenses were as a general matter sustained on income account Email this Content The taxpayers, which were required by the UK Corporation Tax Act 2009 to calculate the “profits of [their] trade … in accordance with generally accepted accounting practice”, were found by the Court to be thereby authorized to deduct the expenses (“Debits”) recognized under IFRS when they granted stock options to employees through an employee benefit trust. In finding that this deduction was not precluded by s. 53 of the same Act, which provided that “[i]n calculating the profits of a trade, no deduction is allowed for items of a capital nature,” Lord Hamblen and Lady Rose accepted the findings below that the taxpayers’ “employees operate in a professional services business whose success depends on the availability of skilled and motivated professionals and the grant of share options to those employees is part of their remuneration package” and that the “Debits were … recurring costs that had a connection with the Appellants’ earning of income ….” ... Summary of Revenue and Customs v NCL Investments Ltd & Anor [2022] UKSC 9 under s. 18(1)(b) – Capital expenditure v. expense- contract modification or grant. ...

11 November 2021- 12:07am Addy – High Court of Australia finds that imposing higher tax on Australian residents who were visa holders than on those who were not, violated a Treaty non-discrimination Article Email this Content The taxpayer, who was a British citizen aged 23, came to Australia on a “working visa” for a 20-month stint, during which period she qualified as an Australian resident. ... Here, that is visa status, a characteristic which depends on nationality – a person not being an Australian national – the very attribute protected by Art 25(1). ... Summary of Addy v Commissioner of Taxation [2021] HCA 34 under Treaties – Income Tax Conventions – Art. 25. ...

27 March 2016- 10:42pm Livent – Ontario Court of Appeal finds that a company can hold its auditors liable for failure to detect the company’s own fraud effected through its senior management Email this Content Deloitte was unsuccessful in arguing that it was not liable to the receiver for a public company (Livent), for failure to detect the fraudulent misstatement of Livent’s financial statements, because it was the most senior management of Livent who were proactively engaged in the fraud, so that effectively Livent was suing Deloitte for Livent’s own fraud. ... Deloitte & Touche (2016), 128 OR (3d) 225 (Ont CA) under General Concepts – Negligence, and General Concepts – Illegality. ...