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22 September 2020- 11:06pm Hansen – Tax Court of Canada finds that CRA could not open up years where an individual annually purchased, occupied, improved and sold a home Email this Content An individual in the concrete pouring or foundation repair business sold five homes in succession over a six-year period after having occupied and improved them. ... The Queen, 2020 TCC 102 under s. 152(4)(a)(i), s. 9 – capital gain v. profit – real estate, and s. 163(2). ...

8 July 2021- 11:57pm Libicz – Federal Court suggests that a clear representation made by CRA officials within the scope of their authority as to an administrative process they will follow is binding Email this Content Not surprisingly, Elliott J found that CRA was not bound to follow a procedure in its Collections Manual that, by the time it actually implemented the action that the taxpayers complained about (merely withdrawing a certificate of taxes owing that CRA had filed under ETA s. 316 rather than permanently canceling it), had been amended by a subsequently-issued internal directive. ... She stated: A legitimate expectation arises when a government official makes “clear, unambiguous and unqualified” representations within the scope of their authority to an individual about an administrative process that the government will follow: … Mavi, 2011 SCC 30 …. ...

7 June 2022- 11:15pm Investissements 3,38 – Court of Quebec finds that a lender’s gain from selling a foreclosed home was a business profit Email this Content A closely-held corporation (“3.38”) run by a retired notary (Blouin) made a mortgage loan to an individual who, a year after the second advance under the loan, defaulted, with 3.38 then foreclosing and, five months later (after having done some minor work on the home) selling it at a gain, representing 32% of the sales proceeds. ... Agence du revenu du Québec, 2022 QCCQ 2534 under s. 9 – capital gain. v. profit – real estate. ...

30 November 2017- 12:28am Abdalla – Tax Court of Canada finds that a “poorly worded” CRA-drafted waiver nonetheless was good enough to effect a valid waiver of appeal rights when signed Email this Content In rejecting taxpayers’ submissions that they had not given valid waivers of their right to appeal, Rossiter CJ quoted the statement in Saskatchewan River Bungalows, [1994] 2 SCR 490 that: Waiver will be found only where the evidence demonstrates that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them. In finding that this test was satisfied here, he stated that although the waiver letter drafted by CRA was “poorly worded … if read in its entirety … there is a sufficient and adequate explanation in the letter [such] that a person would have full knowledge of the rights being waived.” ...

13 January 2019- 10:31pm Abdalla – Federal Court of Appeal confirms the test to be applied in determining a waiver’s validity Email this Content Rossiter CJ had found that taxpayers had given valid waivers of their right to appeal: even though the waiver letter drafted by CRA was “poorly worded … if read in its entirety … there is a sufficient and adequate explanation in the letter [such] that a person would have full knowledge of the rights being waived.” ...

29 May 2019- 1:04am Ellaway – Tax Court of Canada finds that no moving expense deduction was available for a move to Canada Email this Content An Australian resident who moved to Canada to take up residence there was properly denied her moving expenses of $59,188 because she did not satisfy the requirement in the s. 248(1) definition of “eligible relocation” that, before the move, she ordinarily resided at a residence that was in Canada. ... The Queen, 2019 TCC 118 under s. 248(1)- “eligible relocation” – para. (c) and Statutory Interpretation – Interpretation Bulletins. ...

The s.à r.l. relied on 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) if the Alta Canada licences qualified as property of Alta Canada “in which the business of the company … was carried on.” ... It is certainly not the role of the Court to disturb their bargain …. ... The Queen, 2018 TCC 152 under Treaties – Income Tax Conventions – Art. 13 and s. 245(4). ...

15 May 2019- 12:00am Exxonmobil Canada – Tax Court of Canada declines to impute notional income to an essential income-generating activity Email this Content A participant in the Hibernia joint venture treated its share of the costs of the initial well in one of the oil reservoirs as SR&ED on the grounds that the well provided experimental validation of the predictions made using an improved systematic and logical methodology (the “reservoir connectivity analysis,” or “RCA”) for evaluating how a reservoir is connected. ... Reg. 1204(3)(a) excluded “income … derived from transporting … petroleum” from production profits for resource allowance purposes. ... Westar – “the authority has established that 'derived from' is a term of wide import"). ...

17 July 2024- 11:32pm G E Financial Investments – English Court of Appeal 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 concluding that GEFI was not so resident, Falk LJ stated: The US connections required by s.269B are limited to a) stapling of more than 50% by value of the foreign corporation's shares to those of a domestic corporation, and b) direct or indirect ownership as to 50% or more by US persons. … Neither [branch] requires any form of link between the company itself and the United States, whether a formal legal one (such as incorporation, the location of its registered office or similar) or a factual one (such as place of management). … In contrast, the criteria specified in Article 4(1) all describe legal or factual connections between the entity itself and the relevant Contracting State of a kind that may justify worldwide taxation. ... Summaries of Commissioners for His Majesty's Revenue and Customs v GE Financial Investments [2024] EWCA Civ 797 under Treaties – Income Tax Conventions – Art. 4, Art. 5. ...